Rabat - South Africa's judicial decision to seize a Moroccan shipment of 50,000 tons of phosphate from Boukraa constitutes out of doubt a flagrant violation of all international conventions and maritime international customs that prohibit the illegal confiscation of commercial ships and a flagrant violation of “right of innocent passage” of ships.
Rabat – South Africa’s judicial decision to seize a Moroccan shipment of 50,000 tons of phosphate from Boukraa constitutes out of doubt a flagrant violation of all international conventions and maritime international customs that prohibit the illegal confiscation of commercial ships and a flagrant violation of “right of innocent passage” of ships.
Arguably, the South African judicial decision infringes all International conventions on the law of the Sea, in particular, the United Nations Convention on the Law of the Sea, also known as the Montego Bay treaty concluded in 1982 and ratified by 168 states, including South Africa. This Treaty obliges coastal States to respect the right of “free and innocent passage” of commercial ships in their territorial waters. This principle is only limited when the ships threaten the security and safety or public order of the coastal State, or threaten the natural environment, or when it is liable for a debt. Apart from these tight conditions, ships detention are legally prohibited.
The South African detention is founded on Polisario allegations of exploitation of natural resources. Such behavior is obviously and absolutely illegal and lacks juridical as well as objective arguments. First of all, from a purely legal perspective, under international law and in accordance with the Security Council resolutions on the Sahara, the issue of the natural resources originating from conflict zones raises no issues because it is a sovereign matter dealt with by Morocco within its constitutional framework and internal policies, and in accordance with international law and UN resolutions. Moreover, according to the decision of the European Court of Justice in December 2016, the separatist Front does not have the legal legitimacy to represent the economic and commercial interests of the inhabitants of the Sahrawi territories.
In the same context, it should also be noted that the Polisario as a separatist movement does not enjoy the international legal capacity to accede to international treaties. On this basis, South Africa cannot claim that the ship’s detention is based on demands of the Polisario. This entity is not recognized by the United Nations nor by the majority of world countries, despite its participation in the political process of conflict resolution.
Secondly, with regard to objective considerations, it is easy to refute all false claims about the exploitation of natural resources. The average per capita income in the Dakhla Oued Dahab region, and Layoune Sakia Lahmraa, is superior to the national average and the rest of the Kingdom’s regions except the Casablanca Settat region.
More accurately, according to the statistics of the High Commissioner for Planning in 2014, we note that the southern regions of the Kingdom have higher annual per capita income rates compared to most of the rest of Morocco’s regions. For example, in Dakhla and Oued Dahab, the rate is 64,312 MAD, which is the highest in the country. It is noted that this rate is superior to the double of the national average (27.345 dirhams).
In a consultative statement issued by the Economic, Social, and Environmental Council on the territorial distribution of public investment for the year 2015, it is noted that both the Dakhla, Dahab and Layoune Al-Saqih Al Hamra, the two Saharian regions benefited from a significant increase in the volume of public investments and the largest annual growth rate between 1998 and 2012, in spite of their weakest contribution to national GDP. It is also important in this context to emphasize the new development model of the Sahara regions, which has been allocated huge investments estimated at 77 billion dirhams (about 8 billion dollars).
In addition to all these legal arguments and objective facts, how is it conceivable that South Africa claims this decision is intended only to preserve the interests of the inhabitants of the Sahara? Does South Africa have jurisdiction on the Sahara regions?! Or does it have sovereign control of Saharawi territories?! It is obviously an unprecedented interference in the internal affairs of Morocco and a scorn to the legitimacy of Saharawi representatives, whether nationally or regionally. The worst of all is that this behavior is intended to provide a service to an entity whose leaders are engaged in trafficking in humanitarian aid sent to camps under the iron fist of the Polisario leaders..
Another senseless paradox is that this act of hostility committed by South Africa affects first and foremost the interests of the Saharan population themselves and harms their income before it harms the incomes of the Moroccan state and the revenues of Sahara regions.
From the perspective of strategic analysis, especially through a geo-economic lense, the decision to seize a Moroccan shipment shows the deliberate intentions of South Africa to employ the Saharan conflict to wage an economic war on Morocco and affect its interests, even if it is at the expense of the well being of the population of the Sahara themselves. The decision is not only illegal, but also deplorable and morally reprehensible because its hidden purposes are contrary to the declared noble purposes. Therefore, it is not surprising that South Africa is committing illegal and immoral acts in the context of the decrease of its hegemony in the African sphere of political and economic relations, especially after the strengthening of the Moroccan economic presence in the continent in terms of commercial links and the volume of investments.
In conclusion, if the South African judiciary does not cancel this decision, it is imperative to consider this act as a declaration of war. Hence, It should be confronted with the necessary hardness and determination by the Kingdom of Morocco and the international community. Such miscalculated acts threaten the principles of international law of the Seas in particular, and international legality in general.
The possible options in this case remain clear. If South Africa validates the decision ,then it is necessary to take all countermeasures under the principle of”reciprocity.” At the same time, the matter should be put to the International Court of the Law Seas, The International Court of Justice, or the African Union Court of Justice. Ultimately, the UN Security Council is mandated to investigate given that South Africa’s act, if not canceled by the highest court is equivalent to a declaration of war in international law.
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