EU Court Adviser Calls Out Exploitation of Western Sahara

(CN) – Critical of a fishing agreement between Morocco and the European Union, an adviser to Europe’s highest court found evidence that the deal exploits natural resources of the Western Sahara.

While Morocco occupies a majority of the Western Sahara, whose borders it shares with Algeria to the northeast, Mauritania to the east and South, and the Atlantic to the west, an independence movement called the Front Polisario controls a smaller part of the territory in the east.

The Front Polisario wants to liberate the Western Sahara, and its goals of self-determination have been taken up in the United Kingdom by a group called the Western Sahara Campaign.

In a suit before Britain’s High Court of Justice, the campaign challenged a partnership on fishing that the EU and Morocco formalized in 2006.

The deal implicates certain territory and waters of the Western Sahara, in particular granting preferential tariff treatment to products certified as having originated in the Kingdom of Morocco though they really originated in Western Sahara.

Another provision of the agreement allows the UK to license boats so that they might fish in the waters adjacent to Western Sahara.

Though the case was brought before the Queen’s Bench, the Luxembourg-based Court of Justice has stepped in to offer insight on the finer points of EU law.

Advocate General Melchior Wathelet

Advocate General Melchior Wathelet advised the court on Wednesday to invalidate the agreement, noting that “Western Sahara is a non-self-governing territory in the course of being decolonized.”

Emphasizing that Morocco’s presence in Western Sahara should be considered an occupation, Wathelet said the United Nations requires the exploitation of the territory’s fishing rights to benefit people of the territory.

Here, however, “neither the Fisheries Agreement nor the 2013 Protocol contains the necessary legal safeguards for the fisheries exploitation to satisfy the requirements of the criterion which requires that that exploitation is for the benefit of the people of Western Sahara,” Wathelet concluded.

“In the first place, the 2013 Protocol does not contain any commitment on the part of the Kingdom of Morocco to use the financial contribution paid by the Union for the benefit of the people of Western Sahara in proportion to the quantities of the catches taken in the waters adjacent to Western Sahara,” the opinion continues. “On the contrary, whereas 91.5% of the catches are taken solely in fishing zone No 6 (which covers only the waters adjacent to Western Sahara), only 35% of the financial contribution (EUR 14 million out of EUR 40 million) come within the monitoring mechanism.”

Wathelet also cited a lack of evidence that the 14 million euro fund at issue “is actually used for the benefit of the people of Western Sahara.”

“On the contrary, the information supplied by the Commission shows that of the EUR 160 million payable over a period of 4 years (2014 to 2018), only EUR 54 million (or 33.75%) was used for the development of the projects, 80% of which are in Western Sahara,” the opinion states.

The commission argued that 80 percent of the projects that benefit from that 54 million euro payment are in Western Sahara, but Wathelet called this factor meaningless.

“What matters is the proportion of that sum of EUR 54 million that is used to fund projects in Western Sahara, but the Commission has not provided that information,” the decision states

Wathelet also quoted a prohibition from the Fourth Geneva Convention that prohibits an occupying power from “transfer[ring] parts of its own civilian population into the territory it occupies.”

“However, there is no provision in the Fisheries Agreement or the 2013 Protocol that would require the Kingdom of Morocco to use the part of the financial contribution corresponding to the fisheries exploitation of the fishing zones alongside the coasts of Western Sahara in a way that would benefit, in particular, the ‘Saharans originating in the Territory’ or the ‘Saharan populations originating in the Territory,’” the opinion states.

Ultimately, Wathelet found, nothing about the EU’s fishing deal with Morocco ensures that the “exploitation of the waters adjacent to Western Sahara is done for the benefit of the people of that territory.”

“In that sense, the contested acts do not comply with either the principle of permanent sovereignty over natural resources or Article 55 of the 1907 Hague Regulations, or with the European Union’s obligation not to recognize an illegal situation resulting from a breach of those provisions and not to render aid or assistance in maintaining that situation,” the ruling continues.

Wathelet’s opinion is not binding on the Court of Justice, which will now begin consideration of the case. In 2016, the advocate general advised on a related matter concerning EU-Morocco trade agreements, and the Court of Justice carved Western Sahara out of the agreements three months later.

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