LEGAL QUICKSANDS

The four-decade dispute over Western Sahara could spell trouble for trade deals with Morocco, which regards the territory’s resources as its own

Two judgments over the past week, from opposite ends of the earth, show how expensive it can be to do business in the middle of an unresolved political dispute.

First, the high court in Port Elizabeth finalised a case that broke on these pages last year when the NM Cherry Blossom, carrying phosphate for farmers in New Zealand, was held after stopping in that port to refuel. The phosphate had been mined by a Moroccan company operating in Africa’s last colony, Western Sahara. Following an urgent court application by the Sahrawi Arab Democratic Republic (SADR) and the Polisario Front, the ship, with its cargo, has been moored in the port ever since.

Now the high court has issued two significant orders. One, that Morocco’s state phosphate-mining company never owned the cargo and could not sell it to the New Zealand buyers. The other stipulates that the cargo is to be sold by closed tender, with the proceeds divided between the SADR’S attorneys and the ship’s charterer.

The second judgment, issued by the European court of justice, also concerns a dispute over Western Sahara’s resources. In this case Morocco had concluded a fishing deal with the EU under which the EU would pay for the right to extract fish from Moroccan waters. But the geographical boundaries of the agreement, as stipulated by Morocco, included Western Sahara waters. In fact, about 90% of the fish would be caught off Western Sahara’s shore.

A lobby group supporting Western Sahara’s demand for selfdetermination disputed the legality of the deal in the UK courts, which referred the question to the EU court of justice.

Now, that court has ruled that the agreement may not include fish from Western Sahara’s waters.

That would violate international law, as Morocco is not entitled to dispose of the natural resources of a territory that is not its own. This means a reassessment of the agreement — complicated and expensive for both sides — must now follow.

These two cases highlight the continuing struggle for an internationally acceptable political solution to the future of Western Sahara, which was left unresolved after former colonial power Spain quit the area in 1975.

Morocco effectively treats Western Sahara as part of its own territory, while much of the rest of the world regards this as an injustice to the people of that territory and a breach of international law.

The Polisario Front represents the indigenous people of the territory, and has a government in exile in Algeria.

All of this could be dismissed as too complicated and “political” for businesses elsewhere to be bothered about — unless you were part of the New Zealand farmers’ co-op that ordered the phosphate, the owner of the NM Cherry Blossom, or a company with a large order for “Moroccan” fish.

Asserting sovereignty

In a statement issued a few months ago, the leadership of the SADR warned of the “reputation and legal risks” for anyone, including ship owners, involved in the export and sale of natural resources from the area.

The statement suggests that ship owners and charterers should “insulate themselves” from potential liability by stipulating, in any contract between owner and charterer, that the carriage of goods from Western Sahara is prohibited.

SA would appear sympathetic to such an approach. Last week the deputy minister of international relations & co-operation, Luwellyn Landers, spoke in Switzerland about SA’S support for a referendum on self-determination for the region, and its concern about serious violations of international law, including the “plundering” of Western Sahara’s natural resources.

He expressed SA’S backing for “decisive steps” to end this “last vestige of occupation and colonialism” in Africa.

Morocco effectively treats Western Sahara as part of its own territory; much of the rest of the world regards this as an injustice