Before voting on the new EU-Morocco fish deal in 2018, extending into occupied Western Sahara, several EU Member States asked for legal advice that would determine their vote. WSRW today publishes that influential legal opinion, which appears to miss the ball entirely.
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,  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.
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