The EU fisheries in WS is in violation of international law
All evidence points to the fact that a new round of EU fisheries offshore occupied Western Sahara would be in violation of international law. To legitimise their plans, the European Commission is misusing a UN legal opinion from 2002.
1. Western Sahara is not part of Morocco. The International Court of Justice decided in 1975, before the Moroccan invasion, that Morocco had no legal claims to the territory. When Morocco moved into the territories that are main location of the current EU fisheries today, the UN General Assembly “Deeply deplore[d] the aggravation of the situation resoluting from the continued occupation of Western Sahara by Morocco", and urged “Morocco to join in the peace process and to terminate the occupation of the territory of Western Sahara”. [UN General Assembly 34/37, 1979]
2. Western Sahara remains, to this day, a so-called Non-Self-Governing Territory, which is a technical term for “colony”. This status was given to the territory already in the 60s. The territory is still treated by the UN as an unresolved colonial issue. More than 100 UN resolutions have established that the people of Western Sahara has the right to self-determination. This right applies also to the resources of the territory. No states in the world recognise the Moroccan sovereignty over Western Sahara.
3. A UN legal opinion from 2002, written by the former UN secretary-general for legal affairs, Hans Corell to the Security Council, established that the natural resource activity in Western Sahara is illegal if it was "to proceed in disregard of the interests and wishes of the people of Western Sahara".
4. The EU-Moroccan fisheries agreement of 2006-2010 did not include any reference to the fact that Western Sahara is not part of Morocco. Instead, it opened for EU fisheries in Western Sahara under Morocco’s “sovereignty and jurisdiction”. The only legal reference that the Commission is using to defend its agreement, is the mentioned UN opinion from 2002. No reference was made to the wishes or consultation of the Saharawis. The Commission has never made reference to the conclusion of the UN opinion.
5. The European Commission has systematically misrepresented the UN opinion in all its former defence of the fisheries in Western Sahara. Never has the commission referred to the conclusion of the Corell opinion, only segments inside. Never has the Commission consulted the Saharawis over the agreement, and never has the Commission made reference to the wishes of the Saharawis regarding the agreement. For instance, in a letter from the Commission on 27 May 2010, the Commission selected an out-of-context part of the opinion which does not at all reflect its conclusion:
Regarding the compliance of the current Agreement with international law, and the legal opinion of the European Parliament mentioned in your letter, we would like to reiterate that in his letter of 2002, Mr. Corell, concluded that (economic) activities in a Non-Self-Governing Territory by an administering Power are illegal “only if conducted in disregard of the needs and interests of the people of that Territory”.
In this way, the Commission has simply replaced the word in the UN document’s conclusion “wishes” with a completely different word: “needs”. By doing this, the EU is simply ignoring the Sahrawi’s wishes as presented in the UN document, and gives the image that it can decide what it is that the Sahrawis are wishing, on their behalf.
6. This continuous misuse of the UN text has made the author of the UN furious. In a conference on international law in 2008, Ambassador Hans Corell stated it is "obvious that an agreement…that does not make a distinction between the waters adjacent to Western Sahara and the waters adjacent to the territory of Morocco would violate international law".
Corell added: "As a European I feel embarrassed":
"It has been suggested to me that the legal opinion that I delivered in 2002 had been invoked by the European Commission in support of the Fisheries Partnership Agreement. I do not know if this is true. But if it is, I find it incomprehensible that the Commission could find any such support in the legal opinion , unless of course the Commission had ascertained that the people of Western Sahara had been consulted, had accepted the agreement and the manner in which the profits from the activity was to benefit them. However, an examination of the Agreement actually leads to a different conclusion"
7. The Legal Office of the European Parliament supports this position. In a legal opinion from 2009, published in 2010, the office did not find any proof that the Sahrawis have ever been consulted in relation to the former EU fisheries agreement in Western Sahara.
“it is not demonstrated that the EC financial contribution is used for the benefit of the people of Western Sahara. Yet, compliance with international law requires that economic activities related to the natural resources of a Non-Self-Governing Territory are carried out for the benefits of the people of such Territory, and in accordance with their wishes.”
“In the event that it could not be demonstrated that the FPA was implemented in conformity with the principles of international law concerning the rights of the Saharawi people over their natural resource, principles which the Community is bound to respect, the Community should refrain from allowing vessels to fish in the waters off Western Sahara by requesting fishing licences only for fishing zones that are situated in the waters off Morocco.”
9. Morocco has still not presented any evidence to prove that the fisheries activities in Western Sahara under the former agreement benefited the Sahrawi people, nor that they have been consulted. That was also the opinion of most of the Northern European states in a Council of ministers vote spring of 2011.
10. In a statement in May 2010, European Union’s ambassador to Rabat, Mr. Eneko Landáburu, stated in a press conference together with his counterpart from the Moroccan government that the Commission had received advice from “independent institutions” supporting the legality of EU fisheries agreement. This is the first time that the Commission has claimed that there are also other legal opinions about the fisheries circulating. WSRW has asked the Commission which institutions the EU ambassador was referring to, but in their reply, the Commission has failed to answer. WSRW has asked a second time about what institutions and legal opinions the ambassador is referring to, and is currently awaiting answer. The Saharawi human rights organisation CODESA in a letter to the EU ambassador on 9 August 2010 also asked which institutions he referred to. As of November 2010, no reply has still been sent by the EU to the organisation.
11. 14 December 2011, the European Parliament voted down a continuation of the fisheries offshore Western Sahara. Few weeks later, the Commission was given a mandate to start talks for a new agreement. Requests from the Fisheries Commissioner and a number of European Member States urged Western Sahara to be excluded from the upcoming agreement, but Morocco’s closest allies objected.
The EU considers to pay Morocco to fish in occupied Western Sahara. An EU-Morocco Fisheries Agreement from 2013 would be both politically controversial and in violation of international law.
The international Fish Elsewhere! campaign demands the EU to avoid such unethical operations, and go fishing somewhere else. No fishing in Western Sahara should take place until the conflict is solved.