WSRW's letter to Incitec Pivot, 6 March 2018
Published 16 March 2018

6 March 2018

To the attention of Ms Loretta O’Hanlon
Senior Legal Counsel at Incitec Pivot Ltd

Re. Incitec Pivot Ltd’s position with regard to imports of phosphate rock from Western Sahara

Dear Ms O’Hanlon,

We have the honour to again present you our compliments. We are in the process of writing our annual overview report of the Western Sahara phosphate trade for 2017.

Though we’ve not observed any shipments from Western Sahara to IPL in 2017, the company’s legacy as one of the importers of the contentious mineral in recent years means that it will be featured in the report. As such, we would be grateful for your answers and comments to the questions included below, allowing us to accurately reflect your company’s position with regard to phosphate imports from the last colony in Africa.

According to our research, IPL procured three shipments of phosphate rock from Western Sahara in 2016, with a total estimated volume of around 105,000 tonnes. Our enquiry about those shipment of 27 March 2017 was not answered, but your latest letter to us of 22 February 2016, indicated that IPL was decreasing its quantity of phosphate rock sourced in Western Sahara due to higher imports from Togo. A development that we applaud.

In that letter, you also stated that the ruling by the Court of Justice of the European Union had the same conclusion as the UN Legal Opinion of 2002. To recap, the CJEU concluded that Western Sahara is a territory that is “separate and distinct” from Morocco, and that it would thus be unlawful for the EU to conclude any agreement with Morocco for Western Sahara, as that would be a violation of the right to self-determination. The people of Western Sahara, the Court stipulated, have to grant their consent in order for any trade arrangement to affect Western Sahara. The key issue here is that the people of Western Sahara are to consent – their “wishes” ought to be taken into account, as the UN Legal opinion already put it – with regard to any trade arrangement affecting the territory. The CJEU strays from the UN Legal Opinion, if you will, in that it considers the principle of consent to be preeminent, and does not consider it necessary to assess whether the arrangement is beneficial to the people or not: what matters is whether they consent or not.
As you will know, the Saharawi people’s right to self-determination has been repeated in over 100 UN Resolutions. In recent years, UN Treaty Bodies have stressed the need for Morocco to respect the of the Saharawi people to free, prior and informed consent with regard to the exploitation of their resources.

Further underlining that Morocco’s claim of ownership of the phosphate mines in Western Sahara is unfounded, is the case of the NM Cherry Blossom, a bulk carrier transporting 55,000 tonnes of Western Sahara phosphate rock that was detained on 1 May 2017 in South Africa. The South African High Court ruled on 23 January 2018 that the Saharawi Government was the rightful owner of the cargo aboard the vessel, and that Morocco’s state-owned phosphate company OCP SA or its subsidiary in Western Sahara Phosphates de Boucraa were never lawfully entitled to sell the phosphate rock.

We would be grateful for an answer to the following questions:
1. Can you confirm that Incitec Pivot Ltd did not import nor purchase phosphate rock from occupied Western Sahara in calendar year 2017?
2. What are the reasons that no phosphate rock from Western Sahara was imported by IPL in 2017?
3. Has the long-term agreement between IPL and OCP SA or its subsidiary Phosphates de Boucraa expired? If not, when does it expire?
4. In your letter of 22 February 2016, you wrote that IPL supports the UN’s efforts to reach a solution with respect to the issue of self-determination. In view of its support of the UN and of that cornerstone principle of international law, will IPL consider sharing a copy of its agreement covering the imports from Western Sahara with the UN Secretary-General’s Personal Envoy for Western Sahara, Mr Horst Köhler, and with the Saharawi liberation movement, the Polisario Front?
5. Will IPL issue a formal statement saying it will not import phosphate rock from Western Sahara as long as the conflict has not been settled in accordance with the applicable principled under international law, notably the right to self-determination?

Thank you in advance for considering our concerns, and we look forward to hearing from you. Please do not hesitate to get in touch if you’d require any further information on any of the above-raised issues: we’d be happy to respond.

Best regards,

Sara Eyckmans
Western Sahara Resource Watch

A copy of this letter was sent to:
- Australia’s Minister for Foreign Affairs, The Honourable Julie Bishop
- Australia’s Minister for Trade and Investment, The Honourable Steven Ciobo
- UN Special Representative for Western Sahara and Head of UN Mission for the Referendum in Western Sahara, Mr Colin Stewart
- Personal Envoy of the UN Secretary General for Western Sahara, Mr Horst Köhler
- Polisario Front representative in Australia, Mr Kamal Fadel
- President of the Australia Western Sahara Association, Ms Lynn Allison

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