1 July 2010 Brussels Mrs. Maria Damanaki, European Commissioner for Maritime Affairs and Fisheries
Dear Commissioner Damanaki,
You may recall my letter to you of 27 May on behalf of Western Sahara Resource Watch (WSRW) regarding the EU-Morocco Fisheries Partnership Agreement, posing a number of questions relating to the legality of that agreement under international law insofar as it purports to apply to the waters of Western Sahara. I recently received a response to that letter, written on your behalf by Mr. Pierre Amilhat, DG MARE’s Director for International Affairs and Markets. My letter of 27 May and Mr. Amilhat’s response of 23 June 2010 are both attached for your ease of reference.
I am writing again to you now to express the strong concern of WSRW at the content of the response from Mr. Amilhat, in particular its complete misrepresentation of the relevant legal principles applicable to the exploitation of the natural resources of a Non-Self-Governing Territory. Such misrepresentation is indicative of the ongoing efforts by the services of the European Commission to obscure the EU’s international legal obligations in favour of its hard-nosed economic interests in Western Sahara’s fisheries. This is completely unacceptable, and flies in the face of the EU’s stated policy of supporting efforts by the UN to resolve the long-standing dispute between Morocco and the Frente POLISARIO over Western Sahara.
By using a selective quotation from the 2002 legal opinion of the UN Legal Counsel Mr Hans Corell, Mr Amilhat has sought to restrict the scope of illegal activities to those conducted “in disregard of the needs and interests of the people of that Territory”. While it is clear that even this test has not been satisfied in the case of the EU’s fishing in Western Sahara’s waters, I wish to bring to your attention the final, conclusive paragraph of Mr. Corell’s opinion:
“The conclusion is, therefore, that …if further exploration and exploitation activities were to proceedin disregard of the interests and wishes of the people of Western Sahara, they would be in violation of the principles of international law applicable to… resource activities in Non-Self-Governing Territories”. [1] [emphasis added]
The matter of “the wishes” of the people of Western Sahara is central here. By failing to consult with, and seek the consent of the Saharawi people, including through their legitimate and internationally accepted political representation, the Frente POLISARIO, the European Union is exploiting the fisheries in flagrant disregard of its obligations under international law to respect the permanent sovereignty of the Saharawi people over their natural resources. WSRW notes in this regard the relevant findings of the European Parliament’s Legal Service in its legal opinion on this matter, issued in July 2009:
“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.” [2] [emphasis added]
If there was any further doubt on this matter, former UN Legal Counsel Mr Hans Corell has recently clarified the meaning of his 2002 opinion for the UN Security Council as it would relate to the EU-Morocco Fisheries Partnership Agreement:
"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.
[…]
Under all circumstances I would have thought it obvious that an agreement of this kind 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”. [3]
After four years of facilitating fishing by EU vessels in Western Sahara’s waters, the European Commission has failed completely to consult the Saharawi people or the Frente POLISARIO, nor demonstrated how the benefits derived from their fishing activities flow to the Saharawi people. As the exploiter of the relevant resources, these obligations fall to the European Union, and not just Morocco. In this regard, WSRW wishes to reiterate the conclusion of the European Parliament’s Legal Service in its July 2009 legal opinion: “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 resources, 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.” [4] [emphasis added]
With negotiations on a possible renewal of the FPA due to commence in the second half of this year, and to ensure compliance with international law going forward, WSRW requests that relevant European Commission officials be instructed to immediately modify the EU’s implementation of the FPA to ensure that EU vessels do not fish in Western Saharan waters, and to seek the exclusion of Western Saharan waters from the geographical scope of the FPA Protocol.
WSRW also seeks immediate clarification of your position on the legality of EU fishing activities in Western Saharan waters in the light of the applicable legal principles, as detailed above, including the most recent opinion of the European Parliament’s Legal Service.
Finally, WSRW asks you to please respond to the following question from the letter of 27 May 2010 which remains unanswered: the EU’s ambassador to Morocco, Mr. Eneko Landaburu referred to advices from “independent institutions” that would support the legality of the agreement. Which institutions is the ambassador referring to? Have you seen these advices?
Yours sincerely, Sara Eyckmans Coordinator Western Sahara Resource Watch
Cc: - Member States’ Permanent representations to the European Union - Office of the Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, Patricia O'Brien - Former UN Legal Counsel, Mr. Hans Corell - All Members of European Parliament’s Fisheries Committee, Development Committee, Budget Committee and Foreign Relations Committee. - Directorate General for Maritime Affairs and Fisheries’ Director for International Affairs and Markets, Mr. Pierre Amilhat - European Union’s Ambassador to Morocco, Mr. Eneko Landaburu
Footnotes [1] Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council, UN Doc. S/2002/161, 12 February 2002, available for download at . [2] Legal Opinion of the Legal Service of the European Parliament, Document SJ-0269/09, 13 July 2009, Paragraph 38.9. [3] Ambassador Hans Corell, The legality of exploring and exploiting natural resources in Western Sahara, address to the Conference on Multilateralism and International Law with Western Sahara as a Case Study, hosted by the South African Department of Foreign Affairs and the University of Pretoria, held in Pretoria, South Africa, 4 to 5 December 2008, available for download at . [4] Legal Opinion of the Legal Service of the European Parliament, Document SJ-0269/09, 13 July 2009, Paragraph 38.9.
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.
