According to Moroccan media reports, the legal action against the ‘NM Cherry Blossom’, seized on its way to New Zealand with 55 000 tons of phosphate on board earlier this month, is seen as a reaction to Morocco’s recent economic and diplomatic successes on the continent.
Morocco was re-admitted to the African Union (AU) in January this year and has concluded business deals with several countries on the continent – notably involving fertiliser plants using Moroccan phosphate.
However, despite the fact that South Africa is one of the staunchest supporters of Western Sahara and has vowed to fight for independence for the territory, the case may have very little to do with any concerted anti-Morocco diplomacy on the part of South Africa.
Instead, it is the culmination of a long global campaign by the Polisario Front, the independence movement for Western Sahara, to declare exports from the disputed territory illegal.
The court case on the matter, to be heard today, could set a legal precedent that would have an important impact on the status of Western Sahara.
The NM Cherry Blossom was seized in Port Elizabeth in the Eastern Cape following a maritime court order obtained by the Sahrawi Arab Democratic Republic (SADR) and the Polisario Front on 1 May 2017. Legal experts say the case is the first of its kind in South Africa.
The South African Department of International Relations and Cooperation is cited as a respondent in the case. The argument before the court is that the cargo is illegal since it was not authorised by the SADR.
A Daily Maverick article by the South African Minister of International Relations and Cooperation Maite Nkoana-Mashabane calling for an end to the exploitation of the resources of Western Sahara is also cited in the court documents.
The case follows an earlier judgment by the European Court of Justice in December last year declaring that Moroccan exports to the European Union (EU) from Western Sahara could not benefit from the trade agreements signed by Morocco and the EU.
In court documents the SADR says the ‘exploitation of natural resources perpetuates the occupation of Western Sahara and thereby delays its people’s self-determination’. Phosphate is a non-renewable resource and will be crucial to ensure the viability of the territory once it gets its independence, argues the SADR.
Supporters of the Sahrawi cause have in fact been campaigning for some time against the trade in phosphate coming from Western Sahara and have repeatedly alerted the New Zealand-based fertiliser company that these exports are questionable under international law.
In a 91-page document before the court, the ambassador of the SADR in South Africa sets out the historical claim to the former Spanish colony that was taken over by Morocco in the 1970s. Mauritania also claimed a part of southern Western Sahara. At the time, the United Nations (UN) declared it a non-self-governing territory – a status it still holds.
Morocco, however, says it is legally occupying Western Sahara, which it says is historically part of Morocco, dating back to before the period of European colonisation. In reaction to the seizing of the NM Cherry Blossom, Moroccan government spokesperson Mustapha El Khalfi said the mining of the resources of Western Sahara were perfectly legal. He said they were ‘exploited in the framework of international law and national sovereignty’.
El Khalfi said the financial benefits of mining the resources of Western Sahara were minimal compared to the investments Morocco had made to promote development in the territory.
He said the government was doing everything in its power to promote strong regional development. Morocco has put forward a plan that would ensure a large measure of autonomy for the inhabitants of Western Sahara.
Morocco has also launched a campaign to convince more and more African states of its case against the SADR. In the past few weeks Rabat hosted ministers from Zambia and Malawi – the latest two countries to withdraw recognition of the SADR.
If two-thirds of the 55 member states of the AU side with Morocco, it could force a change of the AU Constitutive Act that would allow for the expulsion of the SADR from the AU.
So far, the Polisario Front has rejected Morocco’s offer for a federal arrangement.
However, hope has flared up for renewed negotiations to resolve the conflict that has lasted over four decades. The entry of Morocco into the AU and the appointment of new UN Secretary-General António Guterres could be factors that contribute to finding a settlement.