Why WSRW publishes the legal opinion

The consultation exercises that the EU External Action Service has conducted in view of amending its trade and its fisheries agreement with Morocco so as to explicitly include Western Sahara, were unbecoming for an EU institution.

The EEAS flat out lied about the organisations that had taken part in the consultation in relation to the EU-Morocco trade agreement. WSRW was listed in the Staff Working Documents as having participated. We never have. WSRW had explicitly refused to take part in a consultation on the potential benefits for Western Sahara through a deal that had already been negotiated and initialled with Morocco exclusively, for two reasons. First, WSRW does not speak for the people of Western Sahara, and second, the people of Western Sahara had not consented to the deal – a requirement set forth in the CJEU rulings. The same lie was made about 93 Saharawi civil society groups, the representation of the Saharawi people: Polisario, and a few other NGOs working on Western Sahara. In reality, the only stakeholders that had taken part in the consultation exercise, were all Moroccan entities or individuals.

The list of consulted groups on the new EU-Morocco fisheries agreement - contained in a so-called Staff Working Document (SWD) - was at least more honest. It did list WSRW, Polisario and Western Sahara civil society groups, but stated these had declined the invitation. The participants to the consultation were however, once again, all Moroccan. The fact that some of the included Moroccan institutes are based in Western Sahara, does not mean they represent the people of Western Sahara.

WSRW maintains that a consultation exercise does not meet the requirement set out by the EU Court of Justice: that of consent, as a corollary of the right to self-determination.

The EU-Morocco SFPA was approved by the EU Council and Parliament, despite all known Western Sahara organisations having voiced their objection to the agreement, alongside their political representation, Polisario.

In publishing the legal opinion from the European Council on the SFPA, WSRW wishes to contribute to the ongoing public debate about applying EU-Morocco agreements to Western Sahara, in particular after the consecutive rulings by the EU Court of Justice which all emphasize the right to self-determination of the people of Western Sahara.

The agreement also has environmental consequences and aspects of unfair competition for EU businesses. In addition, it presents an issue for EU taxpayers whose contributions are used to subsidize Morocco’s colonial settlement project in occupied Western Sahara.

The legal opinion of the Council’s Legal Service is also not just a legal opinion. It has had real political consequences. The opinion was the key-element for several EU Member States in determining whether to support the draft agreement or not. Several countries had explicitly stated that if the Council’s Legal Service would confirm the conformity of the proposed deal with EU case-law, they would support it. The Government of Sweden publicly stated it disagreed with the legal opinion, and found the draft agreement did not meet the requirements set out by the EU Court of Justice. WSRW is astonished that the Governments of Germany, Ireland and Denmark could accept the analysis set out in the legal opinion.

The publication of this document is as such in the interest of the public, as it allows for a critical and constructive discussion on the legal implications pertaining to the geographical scope of bilateral agreements with Morocco. A transparent, open and democratic society that is based on the rule-of-law - which the EU purports to be – should welcome such scrutiny. In four consecutive rulings since December 2015, the Court of Justice of the European Union (CJEU) has concluded unambiguously that bilateral EU-Morocco Agreements - including the fisheries agreement between the two parties - cannot be applied to Western Sahara. So when the EU Commission presented its newly negotiated Sustainable Fisheries Partnership Agreement with Morocco, explicitly extending into the waters of Western Sahara, several Member States were sceptical. In October 2018, a group of countries including Germany, Denmark and Ireland, requested the Council Legal Service to provide them with a legal opinion that would assess whether the newly proposed deal was in line with applicable EU case-law.

On 7 November 2018, the Council's Legal Service presented its legal opinion, entitled "Contribution of the Legal Service" and apparently had claimed that a new agreement would be legal.

Western Sahara Resource Watch has received a copy of the opinion, and today publishes the document in its entirety. See the document at the bottom of this article.

The analysis - which was of paramount importance in swaying several countries' votes on the proposed deal - is severely flawed. Since the EU is supposed to be an open and transparent democratic system, rooted in the rule-of-law, WSRW is convinced that disclosure of this unsound opinion is in the public interest.

WSRW's analysis of the legal opinion

The opinion starts by summarizing - correctly - the applicable CJEU rulings. It is clear that the Legal Service of the Council accepts the very core of the principles laid down in what is now EU case-law:
1. Western Sahara has a separate and distinct status in relation to Morocco (C-104/16 P);
2. the people of Western Sahara is a third party to EU-Morocco relations and any agreement applicable to their territory must receive their consent;
3. Morocco has no sovereignty or jurisdiction over the waters of Western Sahara.
Furthermore, the Legal Service of the Council reaffirms that the EU does not – and cannot – recognize the sovereignty claims of Morocco over Western Sahara.

But the ensuing analysis, trying to rhyme the above cited references to EU case-law with applying the newly suggested EU-Morocco fish deal to Western Sahara, goes wide of the mark. It is telling that there are hardly any legal references in the analysis, which instead seems to rely entirely on documents drafted by the EU Commission and the EU External Action Service - the two political bodies that had negotiated the draft agreement with Morocco. The document thus reads as if its conclusion had already been agreed upon beforehand, but simply needed an analysis that fitted the purpose.

Essentially, the opinion highlights three elements that would ensure the deal's compatibility with the law:
1. The inclusion of the waters adjacent to Western Sahara;
2. The consultation and consent of the people of Western Sahara;
3. No recognition of Moroccan claims to sovereignty over Western Sahara.

However, from a legal perspective, all three of those elements are non-sensical, and the argumentation is at times even counter-factual.

Problem 1. Explicitly referring to Western Sahara does not render the deal legal.

The previous fisheries agreement referred to the waters under the jurisdiction of Morocco to describe its scope of application. The EU Court of Justice rejected that such a notion could include the waters of Western Sahara.

The Council's opinion reads that the draft fisheries agreement does not refer to the sovereignty or jurisdiction that Morocco purports to have over Western Sahara. Instead, it describes the scope of application by using geographical coordinates. As such, the waters of Western Sahara are explicitly covered by the agreement.

Yet that still does not align the agreement with EU case-law. As the Legal Service itself admits, the consent of the people of Western Sahara is still required (§22).

Problem 2. There was never any consultation of the people of Western Sahara, nor did they consent to the deal.

The legal opinion seems to have mistaken the purpose of the EU's consultation exercise as described in the so-called Staff Working Document (SWD). The consultation was set up to assess the “benefits for the population” of a new EU-Morocco fisheries agreement which the EU and Morocco had already initialed and agreed to implement. The legal opinion, however, has somehow misrepresented that purpose as if it was meant to obtain the prior consent for entering into a new agreement (paragraph 41). The difference is fundamental. The work of the EEAS was not to obtain prior consent, but to consult on benefits of an already agreed deal. The Legal Services do not explain why they believe such a consent-seeking process has been carried out, nor have they assessed the EEAS's efforts on the matter.

Secondly, who was to have given 'consent' (according to the legal opinion), or to be 'consulted' (according to the SWD)? The SWD refers to the 'population', but the legal opinion refers to the 'people'. The difference is, again, fundamental. It is a people who has the right to consent - not the current inhabitants of the territory today (the majority of whom are occupation forces and settlers). To make it even more confusing: the legal opinion (paragraph 27) stresses that the “consultations that have taken place and their outcome are essentially similar to those in the framework of the amendment of Protocols 1 and 4 to the Association Agreement”. They come to this conclusion even though the two SWDs (found in annex 1 of the trade and annex 2 of the fisheries agreement) present totally different lists of institutions allegedly consulted. The difference is that the first SWD on the trade deal namedropped organisations defending the right to self-determination who had actually condemned the EU's approach as having been consulted, while the second SWD had omitted all such groups altogether.

In combination, these misunderstandings become grave:

Paragraph 27 of the legal opinion concludes that "for the reasons already set out in further detail in its assessment of the latter consultation, [28] the Legal Service takes the view that it appears from the documents submitted to the Council that all reasonable and feasible steps were taken to ascertain the consent of the people of Western Sahara to the draft Agreement and Protocol through the consultation of that people's representative."

This is unprecedented. The Council's Legal Service is here rubber-stamping the EU External Action Service's approach that the consent of the people of Western Sahara can be obtained through consulting Moroccan stakeholders and claiming economic benefits will ensue. There is not a shred of legal analysis to be found in this entire chapter of the opinion. As one understands the legal opinion now, the Legal Service has deduced that the Moroccan government bodies represent the people of Western Sahara. None of the groups that the EU has been in contact with advocate for the right to self-determination. None.

The EU Court of Justice had already settled the issue of benefits: it is considered irrelevant from a legal perspective. What matters is consent. Nevertheless, as recently pointed out by the author of the UN Security Council's legal opinion on Western Sahara, it is unacceptable that the revenues generated by the licences in the zone of Western Sahara would have to be delivered to Morocco’s public treasury or equivalent.

What is far more relevant from a legal point of view, is whether the people of Western Sahara have consented to the agreement or not. It is clear that they have not consented to it. They've never even been heard on it.

1. The EU Commission and the EU External Action Service have negotiated and initialed the agreement exclusively with Morocco. The people of Western Sahara were not involved in any stage of this process.
2. After initialing the deal, the EU External Action Service deployed a consultation process that included Moroccan officials and companies. As such, the consultation process was designed to achieve an endorsement to its proposed fisheries deal: if you ask the right entities, you get the answer you want.
3. The EU External Action Service has manifestly lied about having consulted the UN-recognised representation of the people of Western Sahara, the Polisario Front.
4. Consultation does not equal consent. Whereas to be consulted is to express an opinion that is non-binding on the final decision-maker, consent implies the power to say no. Or in the words of the Legal Service of the European Parliament, “the third party to an agreement must have the possibility to disclaim rights conferred on it”. A people that holds the sovereign rights to the territory, has the right to withhold consent.
5. The Council's formulation in the conclusion that "steps have been taken to ascertain the consent of the people of Western Sahara" gives no meaning. Consent can only be obtained - while one can only ascertain an opinion or position.

It seems that the Council's Legal Service has not bothered to assess the difference in definition of 'consultation' and 'consent', or whether the groups that have participated in the consultation were in fact representative of the people of Western Sahara. The Legal Service have misrepresented the EEAS documents and drawn the conclusion that the Moroccan government bodies constitute a representative of the people of Western Sahara - to the contrary of the CJEU.

Problem 3. Concluding a fisheries agreement with Morocco to cover for fishing activities in Western Sahara is recognising Morocco's sovereignty claims.

For years, EU officials have paid lip-service to the duty of non-recognition, all the while violating that precise duty through applying its agreements with Morocco to the parts of Western Sahara that are under Morocco's military control.

Now, the Council's Legal Service states that “in order to comply with the Court of Justice’s case-law”, explicit coverage of Sahrawi waters in the Fisheries Agreement must not “amount to recognition of Moroccan sovereignty over Western Sahara” (§. 33). And that objective has been achieved, according to the Legal Service, because the draft agreement does not use the terms “Moroccan sovereignty or jurisdiction” and because references in the agreement to Moroccan laws and regulation are without prejudice to the EU’s position concerning the status of the non-self-governing territory of Western Sahara.

This is a circle that cannot be squared.

Precisely by recalling that the EU must not recognize Morocco’s sovereignty claims, the Council Legal Service accepts the view that the unlawful annexation of Western Sahara is a gross violation of international law, since the duty of non-recognition only arises on third parties in the case of such violations.

If accepting that recognition is out of the question, then why not advise the Council against becoming involved in such a situation? It should be the other way around: because the EU does not recognise Morocco’s sovereignty over Western Sahara, it should not conclude agreements with Morocco that cover Western Sahara.

EC Legal Opinion

Brussels, 7 November 2018
CONTRIBUTION OF THE LEGAL SERVICE [1]

To: Delegations
Subject: Draft amended Fisheries Agreement and draft new Fisheries Protocol with Morocco – compatibility with the case-law of the Court

I INTRODUCTION

1. On 8 October 2018, the Commission submitted proposals to the Council for decisions on the signing and conclusion of a new Fisheries Agreement, including an Exchange of Letters, and a new Protocol with Morocco (hereinafter respectively referred to as draft Agreement, draft Exchange of Letters and draft Protocol). [2] These proposals were accompanied by a Commission Staff Working Document containing a report assessing the benefits for the population of Western Sahara as well as the consultation of that population.[3]

2. During the presentation and discussion of these proposals in the Working Party on Internal and External Fisheries and the Mashreq/Maghreb Working Party on respectively 11 and 16 October 2018, delegations asked the Legal Service to assess, in writing, whether these proposals are constituent with the case-law of the Court of Justice. This contribution responds to that request

II. LEGAL BACKGROUND

3. There is a Fisheries Agreement between the EU and Morocco,[4] which has been in force since 28 February 2007.[5] The most recent Protocol to that Agreement [6] entered into force on 15 July 2014 [7] and expired on 14 July 2018.

4. The understanding of the Council and the Commission and of the Moroccan authorities had been that this Agreement and Protocol applied also to the waters adjacent to Western Sahara. However, in its judgment of 27 February 2018 in Case C-266/16 (Western Sahara Campaign UK), the Court of Justice ruled that the Agreement and Protocol do not cover those waters. [8]

5. In particular, following what was already established by the Court in Case C-104/16 (see para. 10 below), the Court concluded that the territory of Western Sahara is not covered by the concept of ‘territory of Morocco’ within the meaning of Article 11 of the Agreement (para. 64). The Court then found that the waters over which a coastal State is entitled to exercise sovereignty or jurisdiction are limited exclusively to the waters adjacent to its territory and forming part of its territorial sea or of its exclusive economic zone (para 68) and that consequently, the waters adjacent to the territory of Western Sahara cannot be regarded as forming part of the Moroccan fishing zone mentioned in the Agreement (para 69). Finally, the Court concluded that any notification of geographical coordinates by Morocco to the Union can in no way extend the scope of those acts so as to include those waters (para 82).[9]

6. Following this judgment, on 16 April 2018, the Council adopted a decision,[10] together with the associated negotiating directives, [11] authorising the Commission to open negotiations with Morocco in order to amend the Fisheries Agreement and to conclude a new Protocol thereto.[12]

7. The amendment of the Fisheries Agreement was deemed necessary in particular to extend the scope of that Agreement (and of a new Protocol) to cover the waters adjacent to the Western Sahara, and the decision authorising the opening of these negotiations and the associated negotiating directives replaced an earlier decision and associated negotiating directives of 19 February 2018 [13] precisely to take into account the judgment of 27 February 2018.[14]

8. To that effect, the negotiating directives (hereinafter all references to negotiating directives refer to those adopted on 16 April 2018) inter alia contained the following elements:

“To promote sustainable and responsible fishing as well as contributing to the strict observance of international law, while ensuring mutual benefits for the EU and Morocco though this new Protocol, the Commission’s negotiations shall seek to:
• Provide for the access to the waters covered by the current Agreement and Protocol and to the waters adjacent to the non-self-governing Territory of Western Sahara and the necessary authorizations for vessels of the EU fleet targeting small pelagic, demersal and highly migratory species to fish in those waters, thereby inter alia maintaining the network of Sustainable Fisheries Partnership Agreements available to EU operators;
• Be supportive of the efforts of the United Nations Secretary-General to find a solution providing of the self-determination of the people of Western Sahara consistent with the principles and purposes of the Charter of the United Nations; […]
• The Commission should ensure that, in line with judgements of the Court of Justice, at the time of its proposal for signature and conclusion, the people concerned by the agreement have been adequately involved.”

9. These elements were consistent with those agreed by the Council in relation to the negotiation of amendments of Protocols 1 and 4 to the EU-Morocco Association Agreement, following the judgment of the Court of Justice of 21 December 2016 in Case C-104/16P (Council v Front Polisario). [15] In that judgment, the Court ruled that the Association Agreement does not apply to the territory of Western Sahara.[16]

10. The Court ruled that the principle of self-determination, as well as the rule according to which a treaty is binding upon each party in respect of its entire 'territory' unless a different intention appears from the treaty or is otherwise established, and the principle of the relative effect of treaties, prevent an interpretation of a Union agreement with Morocco as covering Western Sahara when the agreement does not explicitly mention that territory as being covered. In particular, first, the Court considers that the principle of self-determination implies a distinct and separate status of non-self-governing territories (paras 89-93). Second, it considers that, if an agreement is supposed to apply beyond the “geographical space over which the State exercises the fullness of the powers granted to sovereign entities by international law”, that agreement must expressly provide for it, which was not the case in the agreement in question (paras 94-99). Third, the Court states that “the people of Western Sahara must be regarded as a “third party” within the meaning of the principle of the relative effect of treaties”, with the consequence that the implementation of an agreement in the event that the territory of Western Sahara comes within the scope of that agreement “must receive the consent of such a third party” (paras 100-108).[17]

11. The Legal Service has already given its legal assessment in writing of the outcome of the negotiations on those amendments of Protocols 1 and 4 to the EU-Morocco Association Agreement.[18]

III. LEGAL ANALYSIS

A. The inclusion of the waters adjacent to Western Sahara

12. First of all, the Legal Service considers that it is clear that the draft Agreement and Protocol would apply to waters adjacent to Western Sahara, as required by the negotiating directives. [19]

13. Article 2 of the draft Agreement provides that the Agreement "sets up a framework for […] governance for fishing activities carried out by Union fishing vessels, laying down in particular: (a) the conditions under which Union vessels may engage in fishing activities in the fishing zone;".

14. The fishing zone is defined as follows in Article 1(h) of the draft Agreement: "the waters of the Eastern Central Atlantic Ocean between the parallels 35o 47' 18" north and 20o 46' 13" north, including the adjacent waters of Western Sahara [Footnote: The Sahara region according to the Moroccan position], covering all management areas. This definition shall not affect any negotiations on the delimitation of the sea areas of coastal States bordering the fishing zone or the rights of third countries in general".

15. Article 4 of the draft Agreement provides that "The authorities of […] Morocco undertake to authorize Union vessels to engage in fishing activities in the fishing zone in accordance with this Agreement".

16. The conditions of those authorisations are specified in particular Articles 5 and 6 of the draft Agreement. Article 6(1) requires that Union vessels "comply with Moroccan laws and regulations governing activities in [the fishing] zone, unless otherwise provided for" and Article 6(2) requires that Union vessels "must cooperate with the authorities of […] Morocco responsible for monitoring, control and surveillance".

17. Paragraph 2 of the draft Exchange of Letters reads as follows:

"The Fisheries Agreement is being concluded without prejudice to the Parties' respective positions:

- for the European Union, references in the Fisheries Agreement to Moroccan laws and regulations are without prejudice to its position concerning the status of the non-self-governing territory of Western Sahara, whose adjacent waters are part of the fishing zone defined in Article 1(h) of the Fisheries Agreement, and its right to self-determination,

- for the Kingdom of Morocco, the Sahara region is an integral part of the national territory over which it exercises full sovereignty in the same manner as for the rest of the national territory. Morocco considers that any solution to this reginal dispute should be based on its autonomy initiative."

18. Pursuant to Article 16 and point (c) of Article 1 of the draft Agreement, the Exchange of Letters forms and integral part of the Agreement. [20]

19. Article 2 of the draft Protocol refers to the same fishing zone as defined in the draft Agreement: "The purpose of this Protocol is to implement the provisions of the Fisheries Agreement, laying down in particular the conditions for access by Union vessels to the fishing zone defined in Article 1(h) thereof, and the implementing provisions of the Sustainable Fisheries Partnership" (emphasis added).

20. Given that the draft Agreement defines the fishing zone as a geographical area that clearly covers the waters adjacent to Western Sahara and explicitly adds that the latter waters are included therein, the Legal Service sees no possibility for interpreting the scope of the draft Agreement as not covering those waters.

21. The Legal Service understands that the assessment requested from it is whether these waters are covered in a manner consistent with the case-law of the Court of Justice.

22. In that respect, the Legal Service has already set out in writing its views [21] on what it considers is required under the case-law and under international law to extend an agreement with Morocco to the territory of Western Sahara.[22] As the Legal Service indicated in its written contribution setting out those views, the judgements of the Court do not specify how the consent of the people of Western Sahara should be obtained. Nevertheless, on the basis of international legal doctrine and the Opinion of the Advocate-General in Case C-104/16 P, [23] it may be concluded that such consent cannot be assumed without prior consultation of the people of Western Sahara or its representatives. [24]

23. The requirements for a new Fisheries Agreement and Protocol with Morocco to cover the waters adjacent to Western Sahara are the same.

B. The consultation and consent of the people of Western Sahara

24. The main essential condition in that regard is the appropriate consultation of the people of Western Sahara as a means to ascertain the consent of this people. As indicated above, this requirement was also reflected in the negotiating directives.

25. The explanatory memorandum to the proposed decision on signing the draft Agreement explains that:

“[…] the Commission and the European External Action Service (EEAS) arranged consultations with the relevant populations in Western Sahara in order to ensure that they can express their views on the extension of the partnership to the waters adjacent to Western Sahara and that they benefit from the socio-economic impacts of the Fisheries Agreement in a way that is proportionate and on the consultations conducted is attached […]. The report concludes that the socio-economic impacts of the Fisheries Agreement will greatly benefit the populations concerned and that it will have a positive impact on the sustainable development of natural resources. Similarly, the socio-economic and political actors who participated in the consultations were clearly in favour of concluding the Fisheries Agreement, even though the Polisario Front and some other parties refused to take part in the consultation process as a matter of principle. It can therefore be concluded that the Commission together with the EEAS took all reasonable and feasible measures in the current context to properly involve the populations concerned”.[25]

26. These elements are also reflected in recitals 11 and 12 of the proposed decisions on signing and conclusion.[26] Furthermore, the report in the Commission Staff Working Document inter alia concludes that:

"En ce qui concerne les consultations, le premier volet, consistant en des consultations menées par les autoritiés marocaines, a permis de constater un large consensus dans le soutien du nouveau partenariat de pêche durable, y compris de son extension aux eaux adjacentes au territoire du Sarhara occidental. Il convient de noter que ce soutien a été exprimé à l'unanimité par les élus des Conseils régionaux de Laayoune-Sakia El Hamra et de Dakhla-Oued Eddahab, tous d'origine saharaouie selon les autorités marcaines, et dans une très large mesure par les Chambres de Pêches Maritimes, et la Commission des Affaires Etrangères, des Frontières, de la Défense Nationale et des Territoires marocains occupés de la Chambre des Conseillers du Parlement marocain.

En ce qui concerne les résultats des consultations menées par le SEAE [Service Européen d'Action Extérieure] et la Commission, un soutien très fort à l'extension de l'APPD [Accord de Partenariat dans le domaine de la Pêche Durable] UE-Maroc aux eaux adjacentes au Sahara occidental a également pu être constaté, bien que plusieurs acteurs aient formulé des observations et des recommandations sur certains aspects de la mise en œuvre de l'accord de pêche en vue de maximiser les bénéfices pour la population locale.

Les organisations de société civile et les ONG ont demandé à jouer un rôle plus important dans le suivi de l'APPD et du Protocole, por lequel il existe déjà une commission conjointe prévue dans le projet d'APPD qui doit se réunir au moins une fois par an.

Les parties prenantes consultées n'ont soulevé acucune question spécifique relative aux droits de l'homme concernant le partenariat de pêche et aucune prevue de discrimination fondée sur des motifs ethniques n'a été trouvée. Les interlocuteurs se sont félicités de l'existence d'une clause générale relative aux droits de l'homme et de dispositions spécifiques sur la non-discrimination et les droits du travail, conformément aux normes de l'OIT dans l'APPD et le protocole. De leur côté, le Front Polisario et plusieurs autres acteurs sensibles à sa cause ont refusé de prendre part au processus de consultation sans apporter d'argument contre le nouvel APPD.

Il convient enfin de noter que l'Accord de partenariat de pêche UE-Maroc ne préjuge pas de la position de l'UE vis-à-vis du statut politique du Sahara occidental et du processus mené par l'ONU. L'UE soutient les efforts déployés par l'ONU en vue de parvenir à une solution politique juste, durable et mutuellement acceptable qui permette l'autodétermination du Sahara occidental dans le contexte d'arrangements conformes aux buts et principes énoncés dans la Charte de Nations Unies".[27]

27. The consultations that have taken place and their outcome are essentially similar to those in the framework of the amendment of Protocols 1 and 4 to the Association Agreement. Therefore, for the reasons already set out in further detail in its assessment of the latter consultation, [28] the Legal Service takes the view that it appears from the documents submitted to the Council that all reasonable and feasible steps were taken to ascertain the consent of the people of Western Sahara to the draft Agreement and Protocol through the consultation of that people's representative.

28. The support expressed for the draft agreement and protocol furthermore appears to reflect an assessment that this Agreement and Protocol would bring benefits for the people concerned and ensure a sustainable exploitation of the natural resources, which was a further element set out in the negotiation directives. [29]

29. As regards the sustainable exploitation of resources, the provisions of the draft Agreement are similar to those in other fisheries agreements concluded by the Union and aim to ensure, in accordance with the principles of the Common Fisheries Policy, that fishing activities are sustainable. This is inter alia reflected in Articles 2(d) and (e), 3(1), (4) and (5) and 8 of the draft Agreement. It is also reflected in Article 5 of the draft Protocol.

30. As regards the benefits for the people concerned, Article 12(4) of the draft Agreement (on the financial contribution) provides that “The Parties shall seek a fair geographical and social distribution of the socio-economic benefits arising from this Agreement […], to ensure that this distribution benefits the relevant populations in a way that is proportionate to the fishing activities”. Under Article 13 of the draft Agreement, the Joint Committee has a role in ensuring the respect for this provision. Article 12(4) of the draft Agreement is confirmed by and further specified in several provisions of the draft Protocol, especially Articles 4(2), 6 and 7, which cover the three types of financial support (compensation for access, shipowner fees and sectoral support) and provide for mechanisms to implement this and to verify that this requirement is respected. Under Article 8(5) of the draft Protocol, if the fair geographical and social distribution of the socio-economic benefits is not respected, “the payments and the related fishing activities may be adjusted or, as the case may be, partially or totally suspended”.

31. These elements are also mentioned in the explanatory memorandum to the proposal for the decision on the signing of the draft Agreement [30] and are confirmed in the report contained in the Commission Staff Working Document.[31] They are moreover reflected in recitals 5 and 8 to 10 of the proposed decisions on signing and conclusion.

32. On the basis of these elements, it can be expected that the draft Agreement and Protocol will contribute to sustainable development and the sustainable exploitation of natural resources of the Western Sahara and its adjacent waters and will ensure a fair geographic and social distribution of the socio-economic benefits to the people of Western Sahara.

C. No recognition of Moroccan claims to sovereignty over Western Sahara

33. In order to comply with the Court of Justice’s case-law, it is also essential that the way in which the waters adjacent to Western Sahara are covered by an agreement with Morocco does not amount to recognition of Moroccan sovereignty over Western Sahara. [32]

34. In this respect, the fishing zone is defined in the draft agreement without any references to Moroccan sovereignty or jurisdiction, unlike the provisions of the current Fisheries Agreement, which apply to “the territory of Morocco and to the waters under Moroccan jurisdiction” and to “Moroccan fishing zone”, defined as “the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco”.

35. Moreover, the draft Exchange of Letters explicitly confirms that the draft Agreement is without prejudice to the Parties’ respective positions on Western Sahara and that for the Union, references in the Fisheries Agreement to Moroccan laws and regulations are without prejudice to its position concerning the status of the non-self-governing territory of Western Sahara and its right to self-determination.

36. Therefore, the draft Agreement, including the Exchange of Letters, does not in any way amount to a recognition by the Union of any Moroccan claim to sovereignty over Western Sahara and its adjacent waters. It merely reflects that Morocco de facto controls access to those waters and that fishing there cannot take place without the agreement of Moroccan authorities.

37. This position of the Union is also reflected in the proposals for decisions on signing and conclusion of the draft Agreement, which contain recitals reading as follows:

“The Union does not prejudice the outcome of the political process on the final status of Western Sahara taking place under the auspices of the United Nations, and it has constantly reaffirmed its commitment to the settlement of the dispute in Western Sahara, which is currently listed by the United Nations as a non-self-governing territory and administered principally by the Kingdom of Morocco. It fully supports the efforts made by the UN Secretary-General and his personal envoy to assist the parties achieving a just, lasting and mutually acceptable political solution which will allow the self-determination of the people of Western Sahara as part of arrangements consistent with the objectives and principles set out in the Charter of the United Nations and enshrined in United Nations Security Council resolutions, […]” [34]; and

“…there is nothing in the terms of the Agreement to suggest that it would recognise Morocco’s sovereignty or sovereign rights over Western Sahara and its adjacent waters. The Union will also continue to step up its efforts in support of the process, initiated and pursued under the auspices of the UN, of peacefully resolving the dispute”. [35]

38. Furthermore, the draft Exchange of Letters also provide that “With regard to Western Sahara, the Parties reaffirm their support for the United Nations process and the Secretary-General’s efforts to achieve a final political solution in accordance with the principles and objectives of the Charter of the United Nations and on the basis of the Security Council resolutions”.

39. This is consistent with the negotiating directives, which also required the inclusion of “a review clause enabling inter alia to take into account a mutually acceptable political solution which would provide for self-determination of the people of Western Sahara consistent with the principles and purposes of the Charter of the United Nations”. In that respect, Article 22 of the draft Agreement provides that “The Parties agree to review this Agreement in order to take into account any changes in the legal, environmental, economic and social governance framework that may affect Union fishing activities”. Pursuant to Article 20 of the draft Protocol, the same applies to that Protocol. The Legal Service considers that a mutually acceptable political solution would qualify as a change in the legal and governance framework and would therefore be covered by this review clause.

40. For these reasons the Legal Service considers that the way in which the waters adjacent to Western Sahara are covered by the draft Agreement and Protocol does not amount to any recognition of Moroccan sovereignty over Western Sahara.

IV. CONCLUSION

41. For the reasons set out above, the Legal Service considers, on the basis of the documents submitted to the Council, that all reasonable and feasible steps have been taken to ascertain the consent of the people of Western Sahara to the draft Agreement, including the Exchange of Letters, and Protocol, through the consultation of its representatives, and that the draft Agreement and Protocol cover the waters adjacent to Western Sahara in a manner which is compatible with the case-law of the Court of Justice.


NOTES
[1] This document contains legal advice protected under Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, and not released by the Council of the European Union to the public. The Council reserves all its rights in law as regards any unauthorised publication.
[2] Doc.12863/18 (decision on signing) and ADD 1 (text of the draft Exchange of Letters Agreement and Protocol) and 12864/18 (decision on conclusion) and ADD 1 (text of the draft Exchange of Letters, Agreement and Protocol).
[3] Doc. 12863/18 ADD 2.
[4] Fisheries Partnership Agreement between the European Communities and the Kingdom of Morocco, OJ L 141, 29.5.2006, p.4.
[5] OJ L 78, 17 March 2007, p. 31.
[6] Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, OJ L 328, 7.12.2013, p.2.
[7] OJ L 228, 17 March 2007, p. 1.
[8] Case C-266/16, Western Sahara Campaign UK, EU:C:2018:11. This was subsequently confirmed in relation to the Protocol by the judgment of the General Court of 23 July 2018 in Case T-180/14, Frente Popular de Liberación de Saguía-el-Hamra y Río de Oro (Front Polisario) v. Council of the European Union, EU:T:2018:496. See the analysis in Doc. 12475/18 and COR 3.
[9] See the analysis in Doc. 7585/18 pp.2-3, paras 6-8.
[10] Doc. 7548/18.
[11] Doc. 7548/18 ADD 1.
[12] See the outcome of the Council meeting in Doc. 7989/18, p.11-12.
[13] Doc. 5760/18.
[14] See recital 4 and the article 3 of the decision; the first bullet point of the negotiating directives; para. 1 of the related I/A item note (Doc. 7448/18) and the outcome of the Council meeting in Doc. 7989/18, p.11-12.
[15] See especially the decision of 29 May 2017 authorizing the opening of negotiations and related negotiating directives, set on in Doc. 9093/17 and ADD 1 (RESTREINT UE/EU RESTRICTED).
[16] Case C-104/16 P, Council of the European Union v Front populaire pour la liberation de la saguia- el-hamra et du rio de oro (Front Polisario), EU: C:2016:973.
[17] See the analysis in Doc. 5247/1/17 REV1, pp 3-4, paras 7-10.
[18] Doc. 10738/18 (RESTREINT UE/EU RESTRICTED).
[19] See para. 8 above.
[20] Pursuant to point (c) of Article 1 of the draft Agreement, for the purposes of that Agreement, "Agreement" means "this Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the accompanying exchange of letters, the Protocol on the implementation of this Agreement and the Annex and Appendices thereto". In accordance with Article 16 of the draft Agreement, "the Exchange of Letters accompanying this Agreement shall form an integral part of the Agreement and shall also be governed by [its] final provisions".
[21] Obviously, only the Court of Justice can issue a final judgement on this question.
[22] Doc. 10738/18 (RESTREINT UE/EU RESTRICTED), pp. 12-15.
[23] EU:C:2016:677, especially para. 108.
[24] Doc. 10738/18 (RESTREINT UE/EU RESTRICTED), pp. 12-15.
[25] Doc. 12863/18, under ‘results of ex-post evaluations, stakeholder consultations and impact assessments'.
[26] "(11) In view of the considerations set out in the Court of Justice's judgment, the Commission together with the European External Action Service took all reasonable and feasible measures in the current context to properly involve the populations concerned in order to ensure that their position on the Fisheries Agreement is expressed and taken into account. Extensive consultations were carried out in Western Sahara and Morocco, and the socio-economic and political actors who participated in the consultations were clearly in favor of concluding the Fisheries Agreement, while the Polisario Front and some other parties refused to take part in the consultation process as a matter of principle.
(12) Those who refused to participate in the process rejected the application of the Agreement and the Protocol hereto to the waters off Western Sahara, because they essentially considered that such an agreement would affirm Morocco's position on the territory of Western Sahara. However, there is nothing in the terms of the Agreement to suggest that it would recognize Morocco's sovereignty or sovereign rights over Western Sahara and the adjacent waters. The Union will also continue to step up its efforts in support of the process, initiated and pursued under the auspices of the UN, of peacefully resolving the dispute".
[27] Doc. 12863/18 ADD 2, extracts of the conclusions on p. 34.
[28] Doc. 10738/18 (RESTREINT UE/EU RESTRICTED), pp. 10-11 and 14-15.
[29] See para. 8 above.
[30] Doc 12863/18, under ‘context of the proposal’ and under ‘results of ex-post evaluations, stakeholder consultation and impact assessments'. It inter alia says that: “In accordance with the negotiating directives, the Fisheries Agreement provides guarantees for a fair geographical distribution of the socio-economic benefits, in a way proportionate to the fishing activities, resulting from the use of the total financial contribution under the Agreement (i.e. financial compensation for access, sectoral support and fees paid by shipowners). […] the Commission, and the European External Action Service (EEAS) arranged consultations with the relevant populations in Western Sahara in order to ensure that they […] benefit from the socio-economic impacts of the Fisheries Agreement in a way that is proportionate to the fishing activities. A report on the benefit assessment for these populations and on the consultations conducted is attached […]. The report concludes that the socio-economic impacts of the Fisheries Agreement will greatly benefit the populations concerned and that it will have a positive impact on the sustainable development of natural resources”.
[31] Doc. 12863/18 ADD 2; see especially the summary at pp. 1-2 and 5 and the conclusion at pp. 34-35.
[32] Case C-266/16, Western Sahara Campaign UK, EU:C:2018:118, paras 71-73; Case T-180/14, Frente Popular de Liberación de Saguía-el-Hamra y Río de Oro (Front Polisario) v. Council of the European Union, EU:T:2018:496, paras 48-50; and Case C-104/16 P, Council of the European Union v Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario), EU:C:2016:973, paras. 88-92. See also Doc. 10738/18 (RESTRAINT UE/EU RESTRICTED), p. 15.
[33] See especially Articles 11 and 2(a) of the current Fisheries Agreement.
[34] Recital 4 in both proposals.
[35] Recital 12 in both proposals.