Scoop,
19 May 2008

New Zealand’s illegal trade in North Africa
By Gordon Campbell 

On May 25, a Turkish owned ship called the Cake is due at Lyttleton harbour, and similar port records show the same ship is due in Napier between 3-5 June. On both occasions, the Cake will be unloading a cargo of phosphates that originated in the Western Sahara region of North Africa. This is a highly dubious trade, in seeming violation of the UN Charter. 

This is because Western Sahara has been under military occupation by Morocco since 1975, against the wishes of the indigenous Saharawi people and of their UN recognized political representatives, the Polisario Front. 

The Saharawi have not taken the theft of their country lightly. For 16 yerars from 1975 onwards, the Polisario Front waged a highly successful guerrilla war against the dual invading forces of Morocco and Mauritania, eventually forcing the latter out of the territory. The UN finally brokered a ceasefire in 1991, on terms that it would hold a referendum that would offer the option of full independence. 

Such a referendum has been promised ever since Spain abandoned its colonial territory in 1975, and unilaterally ( and illegally) handed it over to Morocco and Mauritania. Even within the past ten years, different versions of the same promise have been made, by the UN and broken afresh.The UN for instance, eventually appointed the US politician James Baker to devise a compromise plan – which came down to five years of autonomy under Moroccan rule, to be followed by a referendum on full independence. Morocco has refused. 

In the meantime, New Zealand has been engaged with Morocco for nearly the past two decades in a highly questionable trade in phosphate extracted from Western Sahara. On its website, the Ministry of Foreign Affairs and Trade lists Morocco as New Zealand’s main source of phosphates and fertilisers, and these natural resources made up the vast bulk of our $167.9 million imports from Morocco recorded in the year to June 2007. 

Given how crucial fertilisers are to NZ agriculture and farming’s role within the national economy, the importance of this trade can hardly be exaggerated. Unfortunately, trading in the exploited resources of the Western Sahara is in violation of UN resolutions on such non self governing territories as Western Sahara, and of an explicit UN legal opinion. In that respect the trade is not only morally reprehensible, but is, in all likelihood, illegal under international law.

Phosphate resources are only the half of it. Under National and Labour governments, New Zealand has sought to exploit Western Sahara’s rich fishing resources as well. It signed a memorandum of understanding with Morocco in November 2001 to facilitate the fisheries trade, in the wake of a visit to Morocco by then Fisheries Minister John Luxton in 1999, to discuss fishing opportunities for New Zealand firms. 

Two New Zealand firms, Sealord and Prepared Foods NZ are currently exploring joint venture fisheries deals in Morocco. Ravensdown and Ballance Agri-Nutrients are the main New Zealand firms involved in the phosphate trade. In January this year, Trade Minister Phil Goff and Foreign Minister Winston Peters were in Morocco, to discuss further trade options. 

Ironically, this business activity makes Sealord - which is half owned by Maori corporates - an economic ally of the neo-colonial forces that have seized and settled the territory, and it makes them an accomplice in exploiting marine resources that ultimately belong to the indigenous people of the Western Sahara. 

The details of the trade ? Sealord Spain, is a Sealord subsidiary, and has joined with the Chilean company Friosur and Nippon Suisan of Japan to form a partnership called Europacifico del Mar. Europacifico distributes frozen fish products to Spain and to Portugal. In addition, Europacifico exclusively distributes some 30,000 tonnes of marine products in an agreement with the Western Sahara-based Moroccan fishing group Omnium Marocain de Peche. 

As the Norwegian-based Western Sahara Resource Watch ( WSRW) research organization has discovered, this agreement entails the distribution of some 30,000 tonnes of fish taken from the occupied territory, mostly different species of octopus. 

The bulk of the Saharawi population, WSRW has concluded on the basis of its regular contacts, do not profit at all from this exploitation. To compound Sealord’s embarrassment, the agreements between foreign fishing companies on one side and Moroccan fishermen settlers on the other, are enabling Morocco to successfully transplant its own fishing communities to Western Sahara, thus leading to the further displacement and detriment of the indigenous people. 

On April 28, Boudjema Souilah, head of the Foreign Affairs wing of Algeria National Council warned countries that co-operate with Morocco, “to stop plundering the natural resources of Western Sahara.” New Zealand’s collusion with the Moroccan regime happens to be surfacing right in the middle of the latest round of UN brokered talks intended to try and resolve the thirty year long impasse. 

No one is holding their breath for the outcome. Earlier this month in Manhasset, New York, representatives of Morocco and the Polisario Front met under the UN’s auspices in the fourth round of the latest set of negotiations, Morocco is offering broad autonomy to a Western Sahara that would still leave its peoples and resources under Moroccan control, while Polisario are holding out for a referendum containing the option of full independence. Full independence, the UN’s Envoy for the Sahara Peter Van Walsum said in late April, is ‘unrealistic. ”

The UN’s view of Western Sahara Trade. 
Is the NZ trade in Western Saharan resources legal ? Phil Goff says it is. On 26 July 2006, Goff told Parliament he had been advised that New Zealand companies involved in the phosphate trade “are not in breach of either international or domestic law in importing phosphate from Morocco that has been mined in Western Sahara. “ Furthermore : “ I am also advised there are there are no legal grounds for banning the trade from Morocco. Indeed, to do so would be subject to a legal challenge from Morocco under international trade law.” Earler this month when the details of the Sealord deal emerged Goff said that the UN’s position was that such trade was legal, so long as the people of the territory benefitted. 

Virtually in the same breath, Goff voiced his concerns about the political situation in the territory and said New Zealand has “strongly supported” the UN processes and peace plan designed to resolve the Western Sahara dispute. 

How Goff could reach those conclusions is a mystery. His claims misrepresent the analysis provided to the Security Council on 29 January 2002 by the UN’s legal counsel, Hans Corell. Corell had been asked by the Security Council to advise on the legality under international law of ‘the offering and signing’ of contracts with foreign companies for the exploration of mineral resources in Western Sahara.”

Corell’s analysis ? For starters, Corell confirmed that Western Sahara was a non self governing territory as defined by the UN, that its peoples’ interests were paramount, and that Morocco had no valid administrative power over it. Morocco, he pointed out, was not listed by the UN as Western Sahara’s administrating power - and had never transmitted to the UN the necessary information on social, economic and educational conditions in the territory as required of any such valid administrating power under the UN Charter. 

Furthermore, Corell reminded his readers that “the General Assembly has consistently condemned the exploitation and plundering of natural resources and any economic activities which are detrimental to the interests of peoples of these territories and which deprive them of their legitimate rights over their natural resource.” 

Exploration that went only so far as reconnaissance and evaluation, Corell continued, wasn’t illegal per se. Nor would – and this is the bit Goff has selectively seized upon - actual exploitation be illegal if it accorded with the wishes and interests of the people of Western Sahara. In this case however, Morocco is the beneficiary, not the Saharawi. Furthermore – and this should be the decisive factor for Goff - the Saharawi have not been consulted about how they feel about the exploration and exploitation taking place. By contrast, Corell cites in his opinion how when it came to agreements on the exploration and exploitation of oil and gas deposits in East Timor, consultation was carried out with the East Timorese people, who participated actively in the discussions. 

This kind of consultation has simply not happened in Western Sahara. Exploring its resources without consent would not, in itself, in Corell’s view, be illegal. The crunch point would come when the actual exploitation occurred. “If further exploration and exploitation were to proceed in disregard of the interests and wishes of the people of Western Sahara, they would be in violation of the international law principles applicable to mineral [ read : phosphates, or fisheries] resource activities in non self governing territories.”

This situation could hardly be more clear. Yet Goff, in his 26 July 2006 statements to the House and subsequently, has kept on trying to find wiggle room in the Corell opinion where none exists : “ I do not think anybody can say with any certainty what the local people in Western Sahara feel about the mining of phosphate resources. I certainly have no evidence about that. I am aware that the independence movement [ ie, the Polisario Front] is opposed to that, but I am not aware of what the views of the ordinary people in Western Sahara may be, and how could I be? “

This is incredible stuff. Goff is claiming that we don’t know what the people of Western Sahara think of the trade - even though in the same breath he says he knows that their recognized political representatives ( ie the Polisario Front ) oppose such trade. Polisario, you will recall, are the organisation the UN continue to recognize as the valid political voice of the Saharawi people in the Manhasset talks aimed at resolving the conflict.

That’s not good enough for Goff. In the House in 2006 , he was adamant that no way exists for him to know what the Western Saharans really want. That’s why, he says, he has to keep on fostering and supporting the phosphate trade with Morocco. Ironic, really – with such sophistry, Goff is siding with the very people who have consistently denied the Western Saharans the right to say what they want, via a referendum on self determination. 

If Goff feels in such hapless confusion about what Western Saharans really feel about the foreigners and Moroccans jointly exploiting their natural resources, one can reasonably ask what steps did Goff and Winston Peters take during their January 2008 visit to meet with Saharawi leaders, in order to dispel New Zealand’s economically convenient state of confusion? 

Need I also point out how craven it is for New Zealand to be invoking the fear of being sued by Morocco for a WTO trade violation, if we ever did ban the phosphate trade from Western Sahara? In reality, New Zealand would be doing the world a service if it did impose such a ban, and dared Morocco to challenge it. 

To win any subsequent WTO complaint, Morocco would have to prove its rightful ownership of the resources involved. To do so, it would have to argue that its military seizure and subsequent colonization of Western Sahara was valid, and that Morocco was the proper administrating authority. It has absolutely no chance of doing so. The Corell opinion and the International Court of Justice in its 1974 Advisory Opinion have both come down heavily on the side of the Saharawi. 

To this day, Morocco claims that legal ties of allegiance existed in pre-colonial times between the Sultan of Morocco and the tribes living in the territory, sufficient to validate its seizure and current occupation. The International Court of Justice shot that claim down in 1974. Some tribes, the Court agreed, did have such ties at the time when the Spanish arrived in 1884, and some others in the territory did not. 

Overall, the Court concluded the evidence before it did not establish “any tie of territorial sovereignty between the territory of Western Sahara and the kingdom of Morocco…” Therefore, it found, the central UN resolution 1514 on de-colonisation did apply to the people of Western Sahara. In particular, the Court supported their right of self-determination “through the free and genuine expression of the will of the peoples of the Territory.” 

So, despite the Clark government’s vociferous support for the UN and its principles, our comp;licity in the economic exploitation of the Western Sahara suggests the opposite. For now, and unlike its stance on East Timor, New Zealand prefers to cut deals with the occupying power that has long been denying the right of Africa’s last colony to full self determination under the UN Charter. 

Where To From Here? 
The need to find a speedy and just solution in Western Sahara could hardly be more pressing. For the last 30 years, some 90-165,000 Saharawi refugees who fled the Moroccan invasion have been living in horrendous conditions in camps ( situated in harsh desert regions inside Algeria ) that are controlled by the Polisario Front. The Polisario leadership does not live inside the camps, but controls freedom of movement from them, and dissent within them. There are recurring reports that the Polisario leadership profits from smuggling some of the international humanitarian aid essential to keeping the camps afloat.

Both Morocco and the Polisario Front leadership have been accused of too readily accepting the continuation of the status quo. Any final resolution of Western Sahara’s struggle for freedom, as the al-Hayat newspaper wrote in late April, will really depend on whether Algeria and Morocco - the two big rivals for supremacy in this part of North Africa - can reach a mutually acceptable compromise. 

This will not be easy. Algeria and Morocco co-exist in a climate of mutual suspicion and paranoia that has twice led to outbreaks of military conflict in recent times. First, in the so called Sand War of `1963, and again in 1975, when Algeria came off badly. Algeria and Morocco differ in very essential ways. The current state of Algeria was born from a revolutionary struggle against its colonial power, France and has natural sympathy for the Saharawi quest for independence. Morocco by contrast is a hereditary kingdom that can trace its existence in consistent form right back to the 9th century. Morocco assisted the Algerians in their revolution, and feels betrayed by them.. 

Algeria on the other hand, distrusts Morocco’s ambition to re-create the vast Greater Morocco borders of pre-colonial times. Therefore, it uses the Polisario as a pawn and buffer against further expansion by Morocco. For its part, Morocco fears that a free Western Sahara would place an Algerian client state right up against its own borders. 

And so the wary, paranoid dance continues - however tantalizing the fruits of a lasting resolution might seem. If Western Sahara did ever become independent, Algeria could use its former client for direct access to the Atlantic, and use the same route to export iron ore from the Gara Djibilet deposit situated on the Algerian border with Western Sahara. Oh, and did I mention that there is a very real prospect of large reserves of oil and natural gas being discovered in Western Sahara? 

Morocco has its eye on that potential bonanza. For now, it is gambling that its occupation is being accepted as a fait accompli – by France, by the United States and apparently, even by the likes of New Zealand. The risks involved with the world choosing that route and shelving a just resolution is as real with the Saharawi as it is with the Palestinians. Young Saharawi refugees who have spent their entire lives in the camps are increasingly restive with the stalled diplomatic process, with the corruption among the Polisario, and with the failure of the UN to keep its promises. Reportedly, they want to go back to fighting. 

If they do, and Morocco responds militarily by say, shelling the camps on Algerian soil, the Algerians would have no choice but to respond in kind. This would trigger a regional war in North Africa that could make Lebanon look like a picnic. Besides everything else, any rise in regional tension could well leave New Zealand farmers needing to look elsewhere for a cheap supplier to satisfy their fertilizer addiction. 

Over coming days and weeks, I will be seeking comment from Phil Goff, and the likes of Sealord and Ravensdown about this phosphate/fisheries trade with Morocco. Not to mention comment from the trade unionists who will be unloading those phosphate cargoes from the Cake, in Lyttleton and in Napier.