Thursday 22 March 2018

Western Sahara: Courts Assert Sovereignty

Michael Schmidt

A year ago, Western Sahara’s government was girding its loins for a potential return to war with occupier Morocco – should diplomatic interventions via South Africa and its other allies in the African Union, which had just accepted the kingdom into the fold, fail. But two court rulings in recent weeks have rather paved a legal path for the territory’s full independence from Morocco.
The Polisario Front which has fought for independence over 1976-1991 for its self-proclaimed Sahrawi Arab Democratic Republic (SADR) – recognised by more than 80 governments – told Financial Mail in March last year that it would revert to arms should negotiations on the transition to independence of what South Africa and others consider Africa’s last colony not bear fruit.
Then in May, the 34,349-ton Marshall Island-registered cargo ship NM Cherry Blossom was detained in the port of Ngqura by order of the sheriff of the Port Elizabeth High Court. The vessel had stopped to refuel en route from the port of Laayoune in the Moroccan-controlled three-quarters of Western Sahara, carrying 50,000 tons of phosphate mined there for the Moroccan export company OCP SA, headed for a New Zealand fertiliser company, Ballance Agri-nutrients.
Polisario intelligence tracked the shipment and got the vessel detained while SADR argued in the high court that the cargo legally belonged to it. At the time, Moroccan government spokesperson Mustapha El Khalfi pooh-poohed the SADR-Polisario court action, saying: “There have been failed attempts to undermine Morocco’s territorial integrity in the past and future attempts will fail again.” 
But on 23 February this year, Madam Justice Nomathamsanqa Beshe ruled in favour of SADR and Polisario, writing in her judgement that SADR “is the owner of the whole of the cargo,” ownership of which “has never lawfully vested in” Morocco’s OCP SA nor in its subsidiary Phosphates de Boucraa SA which runs the phosphate mines in the Moroccan zone of Western Sahara, and so “they were, and are not, entitled to sell the phosphate” – worth an estimated R59,5m – to New Zealand’s Ballance.
Then on 27 February, with Rabat still reeling from the phosphates judgement, the Court of Justice of the European Union ruled in Luxembourg that the fisheries agreement concluded between the EU and Morocco in 2006 did not apply to the waters adjacent to Western Sahara. An activist group, the Western Sahara Campaign UK, launched a court action in Britain, arguing that the fisheries agreement could not apply to Western Sahara’s exclusive economic zone and so the British authorities could not legally issue fishing permits there.
The British court asked the Court of Justice for clarity, and the latter’s ruling was that as “the territory of Western Sahara does not form part of the territory of the Kingdom of Morocco, the waters adjacent to the territory of Western Sahara are not part of the Moroccan fishing zone referred to in the Fisheries Agreement.” 
What stunned Rabat about both judgments is that they have set clear legal precedents that both the landward and seaward resources of all of Western Sahara belong to SADR and not to Morocco – despite Morocco’s de facto control of the majority of the territory. 
At the weekend, Sahrawi ambassador to SA, Bachir Radhi, said that the EU court’s ruling was “very explicit” in that “it goes beyond the fisheries and agricultural agreements that the European Union has signed.” He warned that henceforth, “Western Sahara will sue any companies – fisheries or other non-governmental companies – that deal with Morocco in goods from Western Sahara.”
The rulings electrified Africa-watchers, with African Intelligence writing that the decision “to exclude Sahrawi fishing grounds from the Morocco-EU fishing agreement… is catastrophic for the regime in Rabat.” They strengthen the hand of Western Sahara as it pushes – via the United Nations secretary-general’s special negotiator Horst Kohler and African Union Commission chair Mussa Faki Mahamat – for direct talks on the future of the disputed territory. Kohler met with Mahamat in January and has invited both parties to resume talks suspended in 2012 – but there is no timeline yet, and Moroccan political analyst El Moussaoui El Ajlaoui warned that Rabat would not accept Kohler’s plan to involve neighbours Algeria and Mauritania. 
On 28 February, Llewellyn Landers, SA’s International Relations deputy director-general, told the UN Human Rights Council in Geneva that Moroccan abuses in the territory included “the prosecution of activists calling for Sahrawi self-determination or reporting human rights violations; the use of excessive force against Sahrawi protesters; restrictions of the right to peaceful assembly; the holding of protesters in so-called ‘preventive detention’ for long periods; and torture of those in detention… South Africa remains unwavering in its support for the holding of a referendum on self-determination for the Sahrawi people… We will continue to share our experiences in the peaceful settlement of conflict...”