The detention of a cargo of phosphate rock destined for New Zealand from occupied Western Sahara
Sydney, Australia 8 May 2017
Port for phospate export from the Bou Craa mine, near Laayoune Marsa Boujdour in Western Sahara, 11th March 2013. Photo: jbdodane via Flickr (CC BY-NC).
On Monday May 1, the government of the Saharawi Arab Democratic Republic (the SADR) and the Saharawi national liberation movement, the Polisario Front, took action to detain pursuant to a court order a cargo of phosphate illegally exported from occupied Western Sahara. The cargo, intercepted in South Africa while en route to Ballance Agri-Nutrients Limited in New Zealand, has a value of more than $7 million (NZD).
The cargo remains aboard the Marshall Islands registered bulk carrier NM Cherry Blossom at anchor in a South African port. Ballance Agri-Nutrients has not requested the release of the cargo to enable the vessel to continue its journey to New Zealand.
Saharawi authorities took a routine step in mercantile and maritime law to assert ownership over a public resource in which sovereignty is vested in the Saharawi people. After years of attempts to engage every corporation which purchases the commodity from the state corporation of a government that has been judicially determined to not have “any” territorial claim or right in Western Sahara, a recourse to legal, peaceful means to recover the resource was considered necessary. The action followed a decision of the Court of Justice of the European Union in December 2016 setting the operation of the European Union’s free trade agreement insofar as it was extended into Western Sahara. As the International Court of Justice did in 1975, the European Court found that Western Sahara is a separate legal entity from Morocco, for which Morocco is unable to conclude treaties. As treaties go, so do purported promises of an ability to transfer ownership of the resources of the territory, including phosphate rock, an export trade of more than $200 million USD ($250 million NZD) in 2016.
The Saharawi people and their government recognize the interests of New Zealand farmers, and have long appreciated civil society’s support for self-determination in cases such as Western Sahara and East Timor. The companies involved had been asked to engage Saharawi concerns on their merits, without success. Two means of resolving the present detention of the cargo aboard the NM Cherry Blossom are possible. A first is to admit the wrongfulness of what is a buying of stolen property and to bring legal proceedings to a speedy conclusion. A second is to pursue the release of the cargo in exchange for posting or offering its value as security for an eventual judicial determination of ownership rights to it.
Kamal Fadel, the Saharawi representative for Australia and New Zealand, stated that: “The Saharawi people have waited 25 years for a self-determination referendum promised them by the United Nations and which virtually every state supports. During this time they have seen the steady plunder of their resources in a way that denies them an economic future and builds an occupation. We have been greatly troubled that a company such as Ballance would accept myths about Western Sahara, including the notion that the ‘question’ of Western Sahara is somehow complicated. It is not. Spain abandoned us to an armed invasion in 1975. The ICJ concluded on abundant evidence that Morocco did not have any territorial claim and that the Saharawi people had the right to self-determination.
The involvement of foreign companies in the exploitation of the resources of Western Sahara emboldens Morocco and encourage the regime in its intransigence and defiance of in international legality and therefore complicate the task of the UN to resolve the conflict. Ballance and Ravensdown could help UN efforts and speed the process of decolonisation of Western Sahara by ending their trade with the Moroccan regime in our resources.
We were greatly troubled that the few companies worldwide which purchase phosphate from out of an occupied Western Sahara have so routinely failed to reply to our concern, and investigate the basic facts for themselves. We have also been concerned in recent days, on learning that this cargo in South Africa, said to be 1/8 of New Zealand’s needs for 2017, has not been requested to be released in exchange for security for its value.”
Fadel remarked that: “It is a great concern that the farmers of New Zealand have been unwittingly using a plundered commodity. Our fight is assuredly not with them. Indeed, after our government’s attempts to engage companies such as Ballance, it is vital to correct the record. No one knows more the value of a resource for plentiful agriculture than the Saharawi people, who continue to face food insecurity in their refugee camps and in that part of Western Sahara suffering under armed occupation.”
Saharawi authorities extend a sincere invitation to meet with them and for the executive officers of each of New Zealand’s two companies to travel to the Saharawi refugee camps and see for themselves the interests and circumstances of a people living in exile. A ready understanding of the basic facts of Western Sahara’s occupation and how the sale of its resources helps to delay the right of self-determination is always helpful.
We also hope that the seizure of the vessel in South Africa would encourage the UN to set up as soon as possible a UN Council for the Natural Resources of Western Sahara similar to the precedent of the UN Council for Namibia which, among other things, legislated for and oversaw the development of natural resources in occupied Namibia until its independence in 1990.