Australian Lawyer questions legality of phosphate imports
The Australian Institute of International Affairs hosted an event in Melbourne on Wednesday 5th October on the issue of Western Sahara under the title: Western Sahara and its Phosphate Rock: is Australia in a Hard Place?
The speakers were the Saharawi representative to Australia Mr Kamal Fadel and Mr Tim Robertson SC, who is a senior barrister and civil libertarian with a very broad practice including international law.
Mr Fadel introduced the topic giving historical and political background to the situation in Western Sahara and reminding the audience it was on the agenda of the United Nations’ Fourth Committee this week. He also mentioned the continuing human rights abuses taking place in Dakhla in the past ten days.
Tim Robertson said the International Court of Justice was very clear regarding the fact that Morocco had no historical title or sovereignty over Western Sahara and that its people were entitled to the right of self-determination.
He mentioned that Morocco is not considered as administrating power of Western Sahara but to be an occupier. He added that the doctrine of self-determination involves a free and voluntary act by the people of a former colony on who would be their sovereign.
Morocco does not have a right to force the option of autonomy or to exclude the option of independence.
He said that the case of Western Sahara is the most shameful for the international community because the Saharawi people have an inalienable right of self-determination but have not been given the opportunity to exercise it. Resolution after resolution in the UN supporting such a right has been passed. A third of the nations of the world have recognised the Saharawi Republic as a legitimate sovereign state in exile. It is also a full member of the African Union.
Despite all of this the international community has done nothing to prevent Morocco from building the military wall dividing Western Sahara and from exploiting Saharawi natural resources. He said that Australia is one of largest purchasers of phosphate from Western Sahara.
He further added that Australian corporations are buying Saharawi phosphate from a seller (Morocco’s OCP) which doesn’t have a title over the goods it’s selling. He mentioned that there is a principle in law called Nemo dat quod non habet, which means that no one can gain title over goods if the seller didn’t have good title. “How does Morocco pass on good title to phosphate ores from Bou Craa?” he asked, adding, “the company that is selling is an organ of state, how does it get its title?”
The Australian government has said that it is not legally obliged to take action to prevent the importation of goods from Western Sahara contrary to the norms of self-determination found in the Charter of the United Nations because the Security Council has not declared trade sanctions on such goods. While it is true that that no sanctions have been declared, Mr Robertson said, the Australian government can still act because all countries have a duty to implement fundamental international norms.
Morocco occupies the major part of its neighbouring country, Western Sahara. Entering into business deals with Moroccan companies or authorities in the occupied territories gives an impression of political legitimacy to the occupation. It also gives job opportunities to Moroccan settlers and income to the Moroccan government. Western Sahara Resource Watch demands foreign companies leave Western Sahara until a solution to the conflict is found.
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