To the West, not all occupied territories are equal (UPDATE)

An interesting thing happened last week:

In today's meeting of EU Ambassadors, a majority of EU Member States indicated to favour the newly proposed EU-Morocco fisheries protocol, which opens for EU fishing in the waters of occupied Western Sahara.

Though many Member States voiced their concerns on the protocol, a majority could be reached in today’s COREPER meeting. The decision to sign the EU’s most criticised fisheries protocol will be formalised at a Council meeting in the coming weeks.

Throwing its massive voting weight in the scale, Germany ended up supporting the controversial protocol that the Spanish government has lobbied so hard for. As far as WSRW understands, the German government will issue a statement that their endorsement should not be viewed as uncritical support.

Five Member States could not agree to the proposed protocol. Sweden and Denmark voted against, while the UK, the Netherlands and Finland abstained. These countries’ stances were underpinned by concerns relating to sustainable management of the available fish stocks and EU fishing in non-Moroccan waters through a deal with Morocco.

The provisional protocol still has to pass through the European Parliament, which is not expected to express its opinion before December.

Here is a more detailed description of how the previous version of the protocol worked, and this one does not change these key points:

According to the EU-Morocco Fisheries Agreement, to which the Protocol sets the terms and conditions, fishing can take place in “the waters under the sovereignty or jurisdiction of the Kingdom of Morocco”. This is the core of the problem.

While no state in the world recognises Morocco’s claims to Western Sahara, Morocco itself views the territory as its own. Since the Agreement fails to stipulate the southern coordinates of the fishing zones, it is left to Morocco to interpret where the European vessels can fish.

The EU is saying that they can directly exploit natural resources in illegally occupied territories.

Its not only Europe, though. Last month Canada decided it can take natural resources away from the occupied people of Western Sahara, by dealing with a Moroccan company that does business over the border:

On 24 October, the bulk carrier Ultra Bellambi is scheduled to arrive at Vancouver. On board of the freighter are 60.000 tonnes of phosphate rock from the Bou Craa mines in Western Sahara. The cargo is worth almost $10 million. That money however, will not end up with the Saharawi people of Western Sahara - the original and sole people of the territory - but with the Moroccan regime that has occupied large parts of their country since 1975.

The phosphate rock was purchased by Calgary based Agrium Inc, under the terms of an agreement it concluded earlier this year with Moroccan state owned company Office Chérifien des Phosphates (OCP). Agrium confirmed to Canadian newspaper The Tyee that it would import one million tonnes each year until 2020, and that part of the imports will be sourced in Western Sahara.

A UN Legal Opinion on exploitation of Western Sahara's natural resources is quite clear that such activity is illegal if not done in accordance with the wishes and the interests of the people of the territory - the Saharawi. The latter have unequivocally stated that they do not consent to Agrium's imports, through a letter by their political representation Frente Polisario to the company.

The EU made a big deal over saying that it had no choice but to adhere to guidelines restricting activity with Israeli companies that do business over the Green Line; international law demands it.

But it appears that it has no problem with such pesky legalities in the Western Sahara.

UPDATE: Eugene Kontorovich has more detail in a memo he wrote and sent me via email:

Differences With Israeli Agreements

1) Territorial Scope. The fisheries agreement applies not just to the “territory” of Morocco, but to all areas under its “jurisdiction,” which is understood to include Western Sahara. In agreements with Israel, however, the EU has only applied it to the “territory” of Israel, which is understood to exclude the West Bank, as well as Jerusalem. The new Funding Guidelines go further and exclude entities with operations in the territories. The guidelines claim that their approach is required by “international law” to avoid recognizing Israel sovereignty over the territories. The Moroccan case proves this concern false and pretextual.

2) Funding. The EU says that its “tax dollars” cannot be spent in occupied territory. Yet it pays Morocco specifically to exploit the scarce resources of occupied territory, against the wishes of its political representatives. This is much more severe than awarding science grants or prizes for, say, archeological research in the Golan. 

EU Parliament’s Formal Legal Opinion: Essential Resource for Israel.

The agreement was adopted despite massive opposition from the political representatives of the Western Saharan people, as well as some European nations. As a result of the controversy, the European Parliament obtained an opinion from its legal advisor.[1] The official opinion, in brief, says international law does not prevent Morocco from exploiting the natural resources of the occupied territory, let alone merely doing business there.  Despite the complete opposition of the Sawahari leadership, the incidental economic benefits of “development” (which the Sawahari deny exists) can be considered sufficient to satisfy Morocco’s obligation to them. Moreover, the opinion says it is legal for the EU to pay Morocco to exploit the resources of occupied territory.[2]

The Legal Opinion is consistent with all prior international law, including a 2002 opinion by the Security Council’s legal advisor, and a ruling of the French Court of Appeals. Indeed, the EU Parliament’s legal advisor may be a bit softer on the extent and nature of the benefit to the local population.

CONCLUSIONS

The positions adopted by the EU in its negotiations with Israel over grants and product labeling are inconsistent with those it has taken at the same time in its dealings with Morocco. While the EU does not recognize Israel’s control over the territories, and opposes it, the same is true of its policy towards Morocco in Western Sahara. Yet this policy does not require, nor does international law, the punitive measures adopted toward Israel. In particular, the EU has used entirely fabricated international law claims in its dealing with Israel, claims contradicted by its own legal advisors.

Perversely, the EU’s treatment of Morocco encourages Israel to conduct more economic activity in the territories. The EU was been under strong pressure to sign the deal with Morocco because of Spanish and French interests in the fish in the occupied territory. They simply did not want to lose an economic opportunity. Thus Israel’s problem may be not enough business in the territories, rather than too much. If significant Israeli defense, high-tech or biotech enterprises on which at least some European industries rely were relocated in eastern Jerusalem, the Golan or the West Bank, the Moroccan precedent suggests this would have the surprising effect of reducing diplomatic pressures on Israel.

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[1] See Legal Opinion of Ricardo Passos, Director, Legal Service of the European Parliament, SJ-0665/13 (Nov. 4, 2013).

[2] The Opinion said international law would be satisfied if Morocco allocated “a certain amount of the financial contribution” fro Europe to the “population” of Western Sahara. Id. at Par. 31. By contrast, the EU settlement guidelines make a narrow exception for activities that “aim” at “benefiting protected persons,” an international law phrase intended to refer to Palestinians. Under the EU legal opinion, benefit to Moroccans in Western Sahara would suffice, and such benefit need not be the “aim,” but could be purely incidental.