Activists Claims Victory As Morocco Pulls Out of Court Case Over Controversial Phosphate Exports

Opponents of phosphate exports from the disputed territory of Western Sahara have claimed victory, after Moroccan phosphate giant OCP announced on July 13 that it would not defend itself in a court case involving a cargo of minerals held up in South Africa.

The NM Cherry Blossom has been detained in the port of Coega on the outskirts of Port Elizabeth, South Africa since 1 May, after the Polisario Front, the liberation movement for Western Sahara, launched a legal bid to stake its claim to the cargo. After an initial hearing on June 15, the court decided to send the case to trial. The cargo was en route to New Zealand where it was to be used in fertiliser.

In a statement issued on July 13, OCP – which operates a phosphate mine in Western Sahara via its wholly-owned subsidiary Phosboucraa – described the court’s decision as “judicial over-reach [which] threatens the freedom and security of international trade”. It said it had notified the court registrar that it will not participate in the trial, adding “we have reluctantly come to the conclusion that participating in any trial before this forum would give further credit to a process without any legal legitimacy.”

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The move has been welcomed by the Saharawi government – which represents the people of Western Sahara – and others. “The fact that Morocco has stepped down shows how weak cards they hold [are],” said Davide Contini of Western Sahara Resource Watch (WSRW), a pressure group. “Morocco has no legal right to exploit the territory it holds under occupation. It surely had no interest in allowing its political arguments be tested by an independent court.”

The approach taken by the South African court contrasts with the outcome of a similar situation in Panama. On June 5 a court there decided it did not have jurisdictional competence to hear a case brought by the Polisario Front involving a phosphate cargo on board the Ultra Innovation bulk carrier.

In a strongly worded statement, OCP said it considered the situation in South Africa “to be an act of political piracy committed under judicial cover”. In separate comments sent by email, a company spokesperson said “we will continue to explore every option under international law to recover our rightful property.”

The spokesperson also intimated that OCP will not be sending any more cargos through South African waters in the near future, saying “We believe that South African waters are no longer a safe place for maritime commerce.”

Morocco has occupied Western Sahara since 1975, coinciding with the withdrawal by the former colonial power Spain. OCP and Phosboucraa say they operate the Boucraa mine under Moroccan law and in full conformity and compliance with international law.

That is not a view shared by the Polisario Front or the Saharawi government and, regardless of OCP’s protestations, the legal pressures on phosphate exports from Western Sahara are likely to continue. On June 21, the Saharawi government issued a policy statement in which it said it would now “more actively pursue ships, ship owners and ship charterers by legal measures in liability for the carriage of Western Sahara’s resources.”

The territory’s government in exile also says it will consider taking civil legal action to detain and recover cargoes of Western Saharan resources on a worldwide basis and also pursue claims for damages.

There have been some signs that the legal situation is forcing some companies to change their approach. In June, the Isle of Man-based shipping firm LT Ugland told the Finansavisen newspaper in Norway that it would no longer be involved in shipments from Western Sahara. The company accounts for only a small part of the trade from the dispute territory – a recent report by WSRW named almost 100 shipping companies involved in moving phosphates between January 2016 and June 2017.