Commission failed Council and Parliament instructions on human rights
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A reading of the newly public, proposed EU-Morocco fisheries protocol reveals that the Commission has failed in its efforts to take into account an important demand from the European Parliament and Council: A clause on human rights.
Published: 01.10 - 2013 14:18Printer version    
On 3 February 2012, the European Council gave a mandate to the European Commission to negotiate a new fisheries protocol with Morocco. The controversial agreement would permit the EU fisheries to take place offshore occupied Western Sahara. The mandate stated that “The Commission’s negotiation objective will be […] including in the new Protocol a clause about consequences in cases of violations of human rights and democratic principles”.

Exactly the same objective was established as a prerequisite by the European Parliament.

But the Commission has failed to negotiate in accordance with the terms it was required to follow.

From the beginning of the fish negotiations, Morocco refused to consider any reference to human rights. As such, the entire spring of 2013, the matter of human rights was therefore the main obstacle in concluding a new protocol with Morocco. Towards the summer of 2013, the talks had reached a complete deadlock, to the frustration of the Spanish fisheries industry that wished to see a new agreement that included the rich fisheries area offshore Western Sahara.

Finally, in the middle of the summer vacations, the European Commission and Morocco reached an agreement which avoided any reference to a human rights clause. By doing that, the Commission did not fulfill its mandate.

The Fisheries Partnership Agreement with Morocco is the first in 3 years that omits a human rights clause. Since 2010, the EU has signed or suggested protocols with nine states: the Comoros, (2010), São Tomé & Príncipe (2011), Cape Verde (2011), Mozambique (2012), Kiribati (2012), Madagascar (2012), Greenland (2012), Gabon (suggested, 2013) and Morocco (suggested, 2013).

See the box below as to what a human rights clause in a EU fisheries treaty normally looks like.

The only minor reference to human rights in the proposed EU-Moroccan protocol is the following passage in its General Principles: “The Protocol is implemented in accordance with Article 1 of the Association Agreement on developing dialogue and cooperation and Article 2 of the same Agreement concerning the respect for democratic principles and fundamental human rights.”

Find the Association Agreement here.

The "General Principles" reference cannot be interpreted to constitute a human rights clause. The Association Agreement’s Article 2 notes that “Respect for the democratic principles and fundamental human rights established by the Universal Declaration of Human Rights shall inspire the domestic and external policies of the Community and of Morocco and shall constitute an essential element of this Agreement.” Article 1 contains no reference to human rights.

The need for a human rights clause in such an agreement is also a prerequisite according to the reformed EU Common Fisheries Policy, albeit not yet finally adopted and implemented (art. 40).

Concerns raised in Brussels over the last week over the lack of such a clause has been responded to by representatives of the Commission, that the General Principles in Article 1 of the protocol must be read in conjunction with the Article 8 of the same protocol. Article 8, however, does not go into the grounds on which a suspension can be claimed - it only specifies the procedures of suspension in the case it would be necessary to take such measure. It has also been stated that the reference in Article 2 of the Association Agreement to human rights being an "essential element" of the Association Agreement is in fact a clause. Western Sahara Resource Watch believes this is not the case.

EU Fisheries Commissioner Maria Damanaki suggested initially in negotiations with Morocco, back in 2011, that the waters off Western Sahara should be excluded from the application. This would have been consistent with international law and with the interpretation of trade agreements of a range of countries, such as the 2004 US-Morocco Free Trade Agreement. However, as Morocco rejected any mention of Western Sahara during its negotiations, the Commissioner instead insisted on the inclusion of a human rights clause as a certain compromise. Now, that clause has also disappeared.

The European Parliament has repeatedly stated its concerns over the Human Rights violations committed by Morocco. See e.g. EP resolution 25 Nov 2010, EP resolution 12 Sep 2012, Annual report on human rights and democracy in the world 2011 13 Dec 2012, EP resolution 7 Feb 2013. Also the Secretary General of the United Nations, and numerous UN special rapporteurs have expressed similar conserns of human rights violations committed against Saharawis.  

Western Sahara Resource Watch believes that any fisheries agreement that fails to exclude Western Sahara from its application would be in violation of international law. That was confirmed as such more than a decade ago by the United Nations office for legal affairs, in a comprehensive opinion that conformed international law as requiring the express consent of the Saharawi people to the exploitation of their natural resources, and for the benefits of such exploitation to be returned to them. The waters off the coast of Western Sahara are not part of Morocco as as a matter of international law, nor has Morocco made any claim to them. The Saharawi people themselves, however, have claimed such waters as theirs, together with the natural resources found in them, doing so through their government-in-exile in 2009.

There is no mention in the newly proposed protocol that the parties would have to consult the Saharawi people of Western Sahara about the exploitation of their resource, nor to ensure to them the benefit of its development. It should be recalled that the Saharawi people were the only inhabitants of Western Sahara when it was invaded by Morocco in 1975, and that they alone have the right of self-determination and the right to control their exclusive sovereign resources.    


Article 9, FPA EU-the Comoros, 18 Dec 2010
"Suspension of the implementation of the Protocol
1. The implementation of this Protocol may be suspended at the initiative of one of the two Parties after consultation within the Joint Committee if: […] (c) the European Union notes that there has been a violation in the Comoros of the essential and fundamental elements of human rights as provided for in Article 9 of the Cotonou Agreement"

Article 10, FPA protocol EU-Kiribati, 30 Oct 2012.
"Suspension of the application of the Protocol
1. In the event that consultations are exhausted without reaching an amicable settlement the application of this Protocol may be suspended at the initiative of either one of the parties if [...] (d) either one of the parties ascertains a breach of essential and fundamental elements of human rights as laid out by Article 9 of the Cotonou Agreement"

Article 9, FPA protocol EU-Mozambique, 23 Jan 2012
"Suspension of the implementation of the Protocol
1. Implementation of this Protocol shall be suspended at the initiative of either one of the Parties subject to consultations between and agreement of the Parties within the Joint Committee provided for in Article 9 of the Agreement: […] (f) if either one of the Parties ascertains a breach of essential and fundamental elements on human rights as laid out by Article 9 of the Cotonou Agreement, and following the procedure set out in Articles 8 and 96 thereof"

Art 9, EU-São Tomé &Príncipe FPA, 24 May 2011
"Suspension of the implementation of the Protocol
1. The implementation of this Protocol may be suspended at the initiative of one of the two Parties if one or more of the following conditions apply: [...] (c) one of the two Parties notes that there has been a violation of the essential and fundamental elements of human rights as provided for in Article 9 of the Cotonou Agreement"

Article 9, FPA EU-Madagascar 31.12.2012
"Suspension of the Implementation of the Protocol
1. Implementation of this Protocol shall be suspended at the initiative of either one of the parties, subject to consultations between and the agreement of the parties within the Joint Committee provided for in Article 9 of the Agreement: [...] (f) if either one of the parties ascertains a breach of essential and fundamental elements regarding human rights as laid out by Article 9 of the Cotonou Agreement, and following the procedure set out in Articles 8 and 96 thereof"

Article 8, EU-Greenland FPA, 23.10.2012
"Suspension of the Implementation of the Protocol
1. Implementation of this Protocol shall be suspended at the initiative of either one of the Parties if: [...] (f) either one of the Parties ascertains a breach of essential and fundamental elements of human rights as laid out in Article 6 of the Treaty on the European Union"

Article 8, FPA EU-Cape Verde, 9 July 2011
"Suspension of the Implementation of the Protocol
1. The implementation of this Protocol may be suspended at the initiative of one of the two Parties if one or more of the following conditions apply: [...] (c) one of the two Parties violates one of the essential and fundamental elements of human rights and democratic principles as provided for in Article 9 of the Cotonou Agreement"

Proposal, FPA EU-Gabon, 2013
"1. The implementation of this Protocol may be suspended at the initiative of one of the two Parties if one or more of the following conditions apply: […] (c) if the European Union or Gabon note that there has been a violation of the essential and fundamental human rights provided for in Article 9 of the Cotonou Agreement and following the procedure provided for in Articles 8 and 96 of that Agreement"

    
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Morocco occupies the major part of its neighbouring country, Western Sahara. Entering into business deals with Moroccan companies or authorities in the occupied territories gives an impression of political legitimacy to the occupation. It also gives job opportunities to Moroccan settlers and income to the Moroccan government. Western Sahara Resource Watch demands foreign companies leave Western Sahara until a solution to the conflict is found.
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