The taking of the Sahara: the role of natural resources in the continuing occupation of Western Sahara

Abstract

The role of natural resources in the continuing ‘question' of Western Sahara is not fully understood. In recent years, the development of the territory's resources has been at issue in efforts to arrive at self-determination for the Saharawi people. Misconceptions about the effect of such development persist, however, because of a lack of credible information and limited analysis of the connection of resources to the stalled process of self-determination and the territory's occupation. The present analysis surveys the history, problems resulting from and consequences of the exploitation of resources in a Western Sahara that has for 40 years been under armed occupation. It begins with Spain's colonizing of Western Sahara and involvement with its resources before turning to the territory's abandonment to Morocco and Mauritania following which Spain retained some resource rights. Revenue from extraction of the two primary resources since 1975 is then assessed and compared to the costs to occupy Western Sahara. The relevant international law is considered, including the right of non-self-governing peoples to sovereignty over natural resources, and the application of international humanitarian law. Rationales for Morocco's extraction of resources are examined, the evidence revealing that the activity is pursued as a basis for the settlement of Moroccan nationals in the territory to better serve an ostensible annexation project, and generate acceptance for territorial acquisition in the organized international community. The prospects for application of the law and the place of natural resources in the resolution of the question of Western Sahara are finally contemplated.

Keywords:

• Western Sahara
• international law
• occupation
• natural resources

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on Contributor

Jeffrey Smith is a Canadian law professor (Carleton University), lawyer and doctoral fellow (McGill University). He was previously counsel for the United Nations Transitional Administration in East Timor, engaged in the international law dimensions of that country's preparation for independence in 2002. Jeffrey has written extensively about Western Sahara, including its fisheries and environmental protection challenges, and the history and status of the Saharawi state-in-exile. His present areas of research include the development of international environmental law within the law of the sea, climate change regulation, human migration, and governance of the Arctic Ocean area. Jeffrey resides in Montreal and Ottawa.

Notes

1 International Court of Justice, Namibia Advisory Opinion, 1971 ICJ Reports 16, para. 124.

2 Morocco occupies three-quarters of Western Sahara which has an area of 266,000 km²within colonial frontiers established by France and Spain. Mauritania and Morocco partitioned Western Sahara in April 1976. Mauritania quit the territory in 1979 upon concluding a peace treaty with the Saharawi national liberation movement, the Frente Polisario (the Popular Front for the Liberation of Saguia el-Hamra and Río de Oro). Morocco then occupied the area left by Mauritania.

The term ‘occupation' is used in its ordinary meaning in international affairs and law, noting the UN General Assembly's declaratory use of it in the case of Western Sahara and the conclusion of the International Court of Justice in 1975, discussed below, that Morocco did not have any legal basis for a claim to the territory.

3 The Canary Current Large Marine Ecosystem on the coast of northwest Africa is the third most globally productive fishery. UNFAO, ‘Protection of the Canary Current Large Marine Ecosystem' (undated), http://www.canarycurrent.org/resources/publications (accessed December 1, 2014).

4 Phosphate rock exports from the Bu Craa (Bou Craa; بوكراع) site by the Moroccan state-owned Office Chérifien des Phosphates (OCP SA) through its subsidiary operating entity, PhosBouCraa, are planned to continue at 2.6 million tonnes/year, averaging 2.2 million tonnes in recent years, with a notable peak of 2.78 million tonnes in 2011, OCP SA Prospectus – 17 April 2014 (a debt-financing prospectus issued on the Irish Stock Exchange), 95 [OCP 2014 Prospectus] (unpublished, copy on file with author). The coastal fishery is carried out by Moroccan, European Union member state, Russian and Japanese vessels, the latter joining for a seasonal tuna fishery in October 2014.

5 The territory's frontiers were established by the Convention pour la délimitation des possessions françaises et espagnoles dans l‘Afrique occidentale, 1900, 92 BFSP 1014; the Convention between France and Spain respecting Morocco, 1904, 102 BFSP 432; and the Treaty between France and Spain regarding Morocco, 1912 (1913) AJIL 7 at Supplement 81.

6 ‘The phosphate mined at Boucraa is sedimentary [i.e. is apatite] and consists of two layers of phosphate … Mining of the second layer, which is less rich [in phosphoric content] and contains more silica, is expected to commence in 2014, following the completion of the necessary processing infrastructure.' No part of the Bu Craa enterprise appears set for capital improvement or expansion in coming years. See OCP 2014 Prospectus, 81–2.

7 The government of Spain divested its ownership in 2002. The entire corporate interest is now held by OCP SA, which became an incorporate entity in 2008, assuming control of all phosphate extraction and export activities in Morocco from the government agency of the same name.

8  Western Sahara is a case of unique dualities in its factual and legal setting. It (its people) are characterized as non-self-governing, and so Western Sahara in law and by UN declaration is a colony. But is also a place under armed occupation, given the absence of a legal claim to the territory by the occupying state. The territory proper has two present de facto sovereigns, a ‘government in exile' that is the Saharawi Republic and Morocco. It has a divided original population, one part under occupation, the other self-governing refugees. And, as discussed below, two bodies of law apply to the development and export of its resources.

9 Declaration of Principles (Tripartite (Madrid) Accords (Mauritania/Spain/Morocco)) (November 14, 1975), 14 ILM 1512.

10 The Madrid Accords arguably lapsed on February 26, 1976 when Spain withdrew its remaining presence in Western Sahara. They were undoubtedly abrogated when Mauritania and Morocco partitioned the territory that April under the Convention concerning the State Frontier Line established between the Islamic Republic of Mauritania and the Kingdom of Morocco, April 14, 1976, 1977 UNTS 117 (in force November 10, 1976).

11 Madrid Accords first protocol, 1975. The protocol provided for joint oversight with a review five years into its 20-year term and compensation for Spanish government property connected to the fishing industry left in the territory.

12 Respectively, the second and third protocols to the Madrid Accords.

13 D. Dahak, Les Etats Arabes et le Droit de la Mer, Tomes I et II (Rabat: Les Editions Maghrébines, 1986), 409. Dahak notes that a 1977 fishing agreement was not ratified by Morocco in response to ‘Spain declaring after 1976 that it had only ceded administration of the territory, and not its sovereignty'. Ibid., 410, translation.

14 Ibid., 411 (footnote omitted). The 1983 agreement prescribed a first annual catch limit of 136,602 tonnes, to be reduced for conservation reasons in following years by 5%, 10% and 14%.

15 Agreement on Relations in the Sea Fisheries Sector between the European Community and the Kingdom of Morocco, OJ L181 (June 23, 1988).

16 T. Shelley, Endgame in the Western Sahara: What Future for Africa's Last Colony? (New York: Zed Books, 2004), 74. During these years, the ECU exchange rate averaged US$0.84. On the 1995 treaty see G. White, ‘Too Many Boats, Not Enough Fish: The Political Economy of Morocco's 1995 Fishing Accord with the European Union', Journal of Developing Areas 31 (1997): 313.

17 ‘[T]he negotiations for the Madrid Accord … provided that “The experts of the two countries will meet prior to 31 December 1975 for the purpose of mapping the median line between the coasts of the two countries’ and that the government of Spain had expressed reservations about petroleum exploration permits issued by the government of Morocco in 1971 in areas between Morocco and the Canary Islands, considered by Spain as having exceeded an equidistance line between the coasts of the two countries”’. Dahak, Les Etats Arabes et le Droit de la Mer, 239 (translation, footnote omitted).

18 The claim to an extended continental shelf (ECS) was first defined in a preliminary submission to the UN Commission on the Limits of the Continental Shelf (CLCS) in May 2009, and further detailed in September 2014. The claim most likely encroaches into Western Sahara's seabed area as there is not yet a territorial sea boundary or an exclusive economic zone (EEZ) boundary between the two states at Cape Blanc. In December of the same year, Spain delivered to the CLCS its ECS claim for the seabed west of the Canary Islands that also appears to overlap with a presumptive Saharan seabed. Morocco has protested at the claim, and the government of the Saharawi Republic has, in turn, protested at Morocco's protest on the basis that it could only be advanced with Morocco in (the illegal) possession of the relevant Saharan coastline. See Letter of Ahmed Boukhari, Frente Polisario representative to the UN at New York to the UN Secretary-General (April 12, 2015) (unpublished, copy on file with the author).

19 Kosmos Energy Ltd. undertook extensive seabed surveys in 2012–14, and has suggested to investors that up to 1 billion equivalent-to-petroleum barrels may be present in its Boujdour Offshore block. In completing test well assessment in March 2015, the company noted petroleum was present but not economically viable for the time being, http://www.kosmosenergy.com (accessed March 20, 2015).

20 In September 2014.

21 See the Agreement between the Government of Russian Federation and the Government of The Kingdom of Morocco for a Marine Fisheries Partnership, 2010 (unpublished, copy on file with the author) and Fisheries Partnership Agreement between the European Communities and the Kingdom of Morocco, July 28, 2005 (entered into force March 7, 2007) (the FPA), http://eur-lex.europa.eu (accessed December 1, 2014). The operative protocol to the FPA was extended in February 2011 as its four-year term was about to expire. That December, the European Parliament ended the extension. In 2013, a new protocol was reached, entering into force in July 2014 with fishing beginning that September. It has a term of four years and will see Morocco annually paid €30 million. EU fishing in Saharan waters – not geographically defined under the FPA's protocols – has been criticized. See J. Smith, ‘Fishing for Self-determination: European Fisheries and Western Sahara – The Case of Ocean Resources in Africa's Last Colony', Ocean Yearbook 27 (2013): 267.

22 Emphasis in original. The 2010 letter added: ‘The waters adjacent to the coast of Western Sahara are NOT Morocco's, as confirmed by the declaration by the Saharawi Arab Democratic Republic (SADR) of an Exclusive Economic Zone on 21 January 2009 … Exploitation by EU vessels of Western Sahara's fisheries resources, without the prior consultation and consent of the representatives of the Saharawi people, is in direct conflict with the non-derogable right of the Saharawi people to exercise sovereignty over their natural resources, and is therefore in violation of international law, including international human rights law and the relevant principles of the Charter of the United Nations’ (unpublished, copy on file with the author). On the history of the Frente Polisario and development of the Saharawi state, see S. Zunes and J. Mundy, Western Sahara: War, Nationalism, and Conflict Irresolution (Syracuse, NY: Syracuse University Press, 2010).

23 Letter of SADR Minister of Foreign Affairs to the New Zealand Minister of Foreign Affairs, ‘The import to New Zealand of phosphate from occupied Western Sahara’, June 12, 2014. Morocco responded with a June 16 letter to New Zealand, requesting the SADR's letter be disregarded. Morocco's letter was disclosed through a Twitter account in November 2014 by someone with access to its ministry of foreign affairs diplomatic cables, ‘Le Makhzen'. (The correspondence is unpublished, copies on file with the author.)

24 Letter of SADR president Md. Abdelaziz to UN Secretary-General Ban Ki-moon, January 26, 2015, http://www.spsrasd.info (accessed April 1, 2015). The Secretary-General noted the letter in his annual report to the UN Security Council, ‘Report of the Secretary-General on the Situation Concerning Western Sahara' (April 10, 2015) UN doc. S/2015/246, para. 62.

25 Even less about natural resources has been the organized international community's response to Morocco introducing its nationals as settlers into Western Sahara. ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.' Article 49, Fourth Geneva Convention: Convention (IV) relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 UNTS 287 (entered into force October 21, 1950).

26 In October 2014 four or possibly five Japanese flag longliners operated southwest of Dakhla in a seasonal tuna fishery, landing their catch in Las Palmas. It is estimated that the four-week activity resulted in a total catch of 1600 tonnes at a market value of $12 million. The vessels were detected by Saharawi authorities and a protest at their presence was made by the Western Sahara Resource Watch NGO to the government of Japan. (Personal conversations of the author with SADR officials and Western Sahara Resource Watch (WSRW) managers, October 2014). The calculation of the value of the catch is the author's from a variety of stated market prices for yellowfin tuna in October 2014 following an estimate of the capacity and likely catch taken by the four vessels. For fisheries market prices, see the UN Food & Agriculture Organization (UNFAO) seafood pricing website: http://www.globefish.org (accessed April 15, 2015).

27 Such occasional and local fisheries are discounted because of the entire lack of credible data about catches and market earnings from them. A crude estimate is that they may be worth $10 million annually.

The author’s personal observation (and from discussions with expatriate Saharawi fishers from Dakhla) is that there is little third state or otherwise IUU (illegal, unregulated, unreported) fishing in Saharan coastal waters (i.e. a presumptive exclusive economic zone). In July 2015 the SADR government protested to the government of the Faroe Islands about the presence of a vessel suspected of IUU fishing west of Cape Blanc. (Unpublished letter dated July 7, 2015, copy on file with the author.)

28 A conservative approach to calculating the present value of the 1.1 billion ECU is used: an exchange rate figure of $800 million; a benchmark date of December 31, 1999 for the 2015 present value; and inflation compounded at 2.00% per annum. If accurately known, historic inflation in Morocco could be the better determinant of present value, but it is not used in the present analysis.

29 The best figure for comparative purposes is present value; the current value of annual revenues remaining after capital, operation and maintenance costs. Under its 2010 three-year agreement with Morocco, Russia was obligated to pay 17.5% of $255/tonne for most species, with an allowable catch of up to 120,000 tonnes in the first year (and a further 80,000 tonnes shared jointly with Morocco). Russia is now required to annually pay $5 million and 17.5% of the caught value of fish (at $497 per tonne for frozen fish) for up to 10 vessels and a maximum of 100,000 tonnes under its 2013 treaty. Payments under the first three-year 2006 agreement are disregarded in the present analysis because of a lack of accurate catch data. A copy of the 2013 agreement can be found at WSRW's website, http://www.wsrw.org (accessed January 15, 2015).

30 The size (capacity) and fishing patterns of Russian flag vessels in Saharan waters suggests a higher value catch. The trawler Oleg Naydenov was one such vessel observed by Saharawi authorities after 2010, which had a capacity of 3372 tonnes. In April 2015 the vessel caught fire in Las Palmas and, after being towed out to sea, sank south of Gran Canaria where it began to release fuel oil. Saharawi authorities monitor fishing using several methods, including at-sea observation, vessel port visit reconciliations, satellite tracking and publicly available records such as catch landing by EU member state fishing vessels. (Personal conversations with SADR officials 2014–15.)

31 The second protocol, ‘Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco', OJ L328/2 (July 12, 2013), was concluded in 2013 and entered into force in 2014. The second protocol and the Fisheries Partnership Agreement are stated to form an integral part of the 1996 EU–Morocco Association Agreement; Article 1 of the second protocol. Article 2 provides that €16 million is payment for the annual catch by EU permitted vessels and €14 million is ‘support for the fisheries sector in Morocco'.

32 See OCP-Bou Craa Production 1975–2006 (unpublished, copy on file with the author). In 1975 production was 2.7 million tonnes. In 1980, 1981 and 1982, there was no production. Annual production did not exceed 1 million tonnes until 1989. It would not return to the 1975 level until 2006. Less than 1 million tonnes per year was produced at Bu Craa during much of the 1980s, exceeding 2 million tonnes only after 1998. In 2011, exports reached a high of 2.78 million tonnes: OCP 2014 Prospectus, 95. In 2012, 2013 and 2014, production and exported annually averaged 2.1–2.2 million tonnes. In late 2014 and early 2015 exports were delayed because of reported structural problems at the el Aauin phosphate loading dock.

33 See ‘OCP SA Note d'Information: Emission d'un Emprunt Obligatoire', http://www.ocpgroup.ma (accessed January 5, 2015), which details two bond offerings of 2 billion Dirhams each, opened for subscription September 22, 2011, with interest at 4.46\% on a seven-year term. Bo Craa is discussed at pages 104, 126 and 149–50. No data is given in the 2011 prospectus about the volume of reserves or production at the site.

34 Present value is calculated here on the basis of annual production of 1.1. million tonnes (1976–2006, inclusive), $30/tonne (idem), and average annual inflation rate of 2.50% from 1976 until 1986, and 2.00% thereafter, compounded annually, not in advance, and known production, export and market value figures for the years 2007–15 (until October 1, 2015), inclusive. Again, the better rate of inflation may be local figures, that in Morocco perhaps averaging 5% in these years. See also figures available from the US Geological Survey at its website, http://minerals.usgs.gov/minerals (accessed December 1, 2014).

35 This figure does not include phosphate rock exports in 2015, the known value of which, until July 15, 2015, was $80 million from 700,000 tonnes shipped. It is expected that 1.4 to 1.8 million tonnes will be exported in the year, with a total value of $160 to $200 million. (Conversations of the author with SADR officials and WSRW managers, July 2015.)

36 OCP 2014 Prospectus, 110. Some 400 Saharawi persons are said to be employed in this workforce, a figure the author arrived at after interviews with persons living in the occupied part of Western Sahara and SADR government officials from October 2012 until February 2015. In an undated document titled ‘Allegations regarding exploitation of natural resources’ made available in March 2015 by Morocco's embassy in Australia, Morocco notes ‘the basis of [OCP's] exploitation is motivated, above all, by social considerations imposed by the necessity to preserve the jobs of the Western Sahara workers who support more than 700 families’ (unpublished, copy on file with the author).

37 See e.g. submissions made in October 2011 to the UN General Assembly Special Political and Decolonization Committee at New York, http://www.un.org/en/ga/fourth (accessed February 1, 2015). Morocco did not provide data to support its figures. It is not clear if the figures include costs to construct and maintain public infrastructure in the territory.

38 ‘Allegations regarding exploitation of natural resources’, a document issued by the Embassy of the Kingdom of Morocco in March 2015 (undated) (unpublished, copy on file with the author). (Emphasis in original.) The document notes the expenditures were directed to ‘urbanisation', ‘basic infrastructure' (964 km of roads, three airports, three sea ports) and ‘drinking water supply'.

39 The SADR government has presented a reparations claim to a phosphate purchasing company, Potash Corporation, stating: ‘ Our purpose in writing is to deliver to Potash Corporation notice of a pending or eventual claim for compensation resulting from your company's purchase of phosphate mineral rock from occupied Western Sahara … The historical record and precedent bear out a claim for reparations, recalling the examples of the United Nations (Iraq–Kuwait) Compensation Commission and the mechanisms in the 1998 Rome Statute of the International Criminal Court … We calculate the claim conservatively to be at least $400 million (in 2014 dollars).' SADR Petroleum and Mines Authority letter of January 10, 2014 (unpublished, copy on file with the author).

40 The leading ICJ decision on the right of non-self-governing peoples to self-determination is the Kosovo Advisory Opinion (Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion), ICJ Reports 2010, 403. ‘During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation.' Ibid., at para. 79 (citations omitted). The ICJ has not pronounced on the legality of resource development in non-self-governing territories or those considered occupied within international humanitarian law.

It is the right of permanent sovereignty to resources, coupled with the right to self-determination, that requires Morocco as an administering state in Western Sahara to ensure the consent of the original inhabitants of the territory is obtained to resource development, and that the benefits of such development accrue to them. This was the basis for the governance of Namibia's resources under occupation, by decree of the UN Council for Namibia, created in the 1960s and discussed below.

The leading international criminal law decisions for the taking of public resources under occupation remain those of the International Military Tribunal after the Second World War, for which see the discussion in James G. Stewart, Corporate War Crimes: Prosecuting the Pillage of Natural Resources (New York: Open Society Initiative, 2010).

41 This body of law traces back to the UN's decolonization mission with the UN General Assembly issuing its 1962 declaration, Permanent Sovereignty over Natural Resources, GA Res 1803 (XVII) (December 14, 1962), discussed below. Arguably, because Spain could not assign or transfer responsibility for self-determination of the Saharawi people to other states, Spain remains responsible for resource development in Western Sahara, that is, ensuring the consent of and benefit to the Saharawi people from such activity.

42 International humanitarian law and international criminal law is discussed below. As noted above, Spain's courts have accepted the application of international criminal law in recent months. Pillage may result in the setting of an international or a non-international armed conflict, from the taking of public and private resources. The Fourth Geneva Convention, 1949 and the Rome Statute 1998 of the International Criminal Court, discussed below, govern. Because of the stricter obligation to protect an occupied population, Morocco is arguably first bound to comply with international humanitarian and criminal law in its administration of Western Sahara.

43 Resolution 34/37 ‘deeply [deplored] the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco and the extension of that occupation to the territory recently occupied [until August 1979] by Mauritania'. Question of Western Sahara, GA Res 34/37 (November 21, 1979).

44 The first was a decision of the Audencia Nacional directing an investigating magistrate to proceed on a criminal complaint about the death of a dual Saharawi/Spanish citizen at Gdeim Izek in November 2010. The court concluded that international criminal law applied in the territory as a result of Spain's adoption of such law into its national legal system. The same court concluded the following April that an investigation for genocide could proceed against 11 Moroccan citizens in the early years of Western Sahara's occupation. See the Decisions of the Audiencia Nacional, Auto no. 40/2014 (July 4, 2014), and Sumario 1/2015 (April 9, 2015). The latter decision effectively set aside Spain's November 1975 statute that purported to abrogate the country's colonial responsibility for Western Sahara, Ley 40/1975. See Fernando J. Pérez, ‘Ruz procesa 11 mandos militares marroquies por genocidio en el Sáhara’, El País, April 9, 2015.

45 Spain formally legislated an end to its responsibility. See Ley [Law] 40/1975, de 19 de noviembre, sobre descolonización del Sahara. ‘The Government is authorized to perform such acts and adopt measures as may be necessary for the decolonization of the non-autonomous territory of the Sahara, safeguarding Spanish interests.’ (Translation by the author.)

46 The UN General Assembly-created Council for Namibia had legislative and executive jurisdiction for the territory after the termination of South Africa's mandate, exercising it including by legal action in the protection of natural resources. See The Question of Namibia, GA Res 2248 (S-V) (May 19, 1967). In November 2011, the Frente Polisario first called for UN oversight and possibly a form of trusteeship of natural resources in Western Sahara.

47 UN Security Council Resolution S/2218 (April 28, 2015) is the most recent annual extension of MINURSO's mandate. The UN assumed the obligation to ensure Saharawi self-determination in its referendum agreement with Morocco and the Frente Polisario which took effect in September 1991. The agreement is detailed in two reports of the UN Secretary-General, S/21360 (June 18, 1990) and S/22464 (April 19, 1991). ‘The two parties, namely the Kingdom of Morocco and the Frente POLISARIO, recognize in the settlement proposals that the sole and exclusive responsibility for the organization and conduct of the referendum is vested in the United Nations.' S/22464, para. 9.

48 Article 73, Charter of the United Nations (June 26, 1945) 1 UNTS 16 (in force October 24, 1945). The UN Secretary-General noted the application of Article 73 in his annual report to the UN Security Council of April 10, 2015, above.

49 Declaration of the Granting of Independence to Colonial countries and Peoples, GA Res 1514 (XV) (December 14, 1960) and Principles which should Guide Members in Determining whether or not an Obligation Exists to Transmit the Information called for under Article 73e of the Charter, GA Res 1541 (XV) (December 14, 1960). See also Permanent Sovereignty over Natural Resources, GA Res 1803 (XVII) (December 14, 1962).

50 Ibid., Sovereignty over Natural Resources resolution.

51 Ibid., Articles 1 and 7, respectively.

52 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Reports 136 [Palestine Wall, Advisory Opinion]. Paragraph 159 of the Opinion is worth recalling: ‘Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by lsrael with international humanitarian law as embodied in that Convention.' The Court noted that the taking of resources for construction of the wall was to be remedied, including payment of compensation. Ibid., para. 153.

53 Respectively, Case concerning Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objection, 1992 ICJ Reports 240, East Timor (Portugal v Australia), 1995 ICJ Reports 139 [East Timor], and Palestine Wall, Advisory Opinion, ibid.

54 Economic and Other Activities which Affect the Interests of the Peoples of Non-Self-Governing Territories, GA Res 69/98 (December 16, 2014), paragraph 1.

55 Dissenting Opinion in East Timor, 198.

56 ‘Report of the UN Office of Legal Affairs on the Legality of the Oil-Contracts Signed by Morocco over the Natural Resources of the Western Sahara' (letter dated January 29, 2002), UN doc. S/2002/161 (February 12, 2002), http://www.arso.org/UNlegaladv.htm (accessed December 1, 2014).

57 United Nations Convention on the Law of the Sea, 1982, December 10, 1982, 21 ILM 1261 (in force November 16, 1994) [UNCLOS].

58 UNCLOS Resolution III, para. 1. There has been virtually no mention of Resolution III in the context of the ‘question' of Western Sahara by any state, the UN, or any commentator.

59 Territorial integrity finds its starting place in the UN Charter, at Article 2. The basis to assert the territorial integrity of Western Sahara has several dimensions, including the necessity of such a circumstances in order to ensure the exercise of the Saharawi people's right to self-determination, the commitments of the parties in the 1990–91 ceasefire and referendum arrangements, the principle of uti posseditis in the maintenance of the inviolability of Western Sahara's territory and, notably, the conclusion of the ICJ that Morocco has not basis in law for a territorial claim to the Sahara. The UN General Assembly's declaration of Western Sahara to be occupied and the African Union's position on the nature of Morocco's presence in the territory, discussed above, are a part of this imperative.

60 US diplomatic cable, ‘Seven Saharawi activists charged with intelligence cooperation with a foreigner' (US embassy Rabat) (October 16, 2009), http://www.wikileaks.ch (accessed December 1, 2014).

61 Fourth Geneva Convention, Article 6.

62 Consider the statements of United States, Norway and Switzerland that their free trade agreements with Morocco do not apply to Western Sahara.

63 Western Sahara, Advisory Opinion, para. 161

64 Ibid., para. 162.

A useful fact in applying international humanitarian law is Mauritania's admission of its wrongful occupation of Western Sahara, made in its 1979 treaty with the Frente Polisario. If a court has yet to pronounce definitively on the legal situation resulting from Morocco's occupation, the statement of an occupier asserting a similar historic claim as Morocco (and which agreed with Morocco to partition the territory in 1976) is compelling.

65 The best historical record is that presented in voluminous records to the ICJ by Spain, Mauritania and Morocco in the 1975 advisory opinion proceedings. Mauritania could never hope to share in the phosphate reserves at Bu Craa. The most in-depth discussion of the ‘siren call' of resources and the idea sometimes suggested that Morocco hoped to acquire a monopoly of global phosphate production by its annexation is that of Tony Hodges, Western Sahara: The Roots of a Desert War (Westport, CT: Lawrence Hill, 1983).

66 There are few available figures about the cost of Morocco's military presence in Western Sahara. The CIA's 2014 World Factbook notes that the Kingdom's annual military spending in 2012 was 3.55% of a $105 billion GDP (2013 estimated), https://www.cia.gov/library/publications/the-world-factbook/geos/mo.html (accessed March 1, 2015). Morocco's reported state (government) budget for 2013 was estimated at $34.5 billion. (Transparency International states GDP in 2010 at $90.8 billion.) On the basis that one-third of Morocco's armed forces and military support infrastructure, including as many as 100,000 FAR members, is located in Western Sahara, the annual military cost of the occupation is approximately $1.2 billion.

67 Personal interviews, Saharawi government officials at the Boujdour and Rabouni refugee camps, October 2010 and December 2012.

68 In late 2010 the Saharawi protest camp at Gdeim Izek near el Aauin and others in the occupied territory were expressions of Saharawi discontent over marginalized economic circumstances. See Association Sahraouie des Victimes des Violations Graves des Droits de l'Homme Commises par l'Etat du Maroc, Rapport de l'ASVDH sur le campement de Gdeim Izik et les événements qui ont suivi son démantèlement (Tindouf, Algeria: January 2011).

69 See UN Office for the Coordination of Humanitarian Affairs (Financial Tracking Services), ‘Aid to Saharawi Refugee Camps in 2013′ (December 12, 2014), http://fts.unocha.org (accessed April 1, 2015). In 2013, a total of $24 million was given by various governments (e.g. Spain) and agencies (WFP, UNHCR, UNICEF) as aid into the Tindouf camps. The SADR government has few sources of revenue, but obtains modest operating funds of perhaps $10 million annually from AU member states. Algeria offers considerable in-kind and material support to the Tindouf camps, including electricity and, through the Algerian Red Crescent, cooking gas. In the author's visits to the camps, discussion with aid agency managers, and interviews of SADR officials, the figure of €40–60 million for 2014 is arrived at.

70 Petrol is taxed less in occupied Western Sahara than in Morocco and is supplied by chartered vessels to El Aauin and Dakhla. See Western Sahara Resource Watch, ‘Fuelling the Occupation: The Swedish Transport of Oil to Occupied Western Sahara' (WSRW: Brussels, July 2014).

71 The work is part of the UN Food & Agriculture Organization's Canary Current Large Marine Ecosystem (CCLME) Project. See the UNFAO project website: http://www.canarycurrent.org (visited April 1, 2015).

72 See the 2010 report prepared by the consultancy Oceanic Développement, ‘Framework Contract Fish/2006/20 Convention Specifique N°26: Evaluation ex-post du protocole actuel d'accord de partenariat dans la domaine de peche entre l'union europeenne et le royaume du maroc, etude d'impact d'un possible future protocole d'accord – Rapport – Décembre 2010', http://www.fishelsewhere.eu/files/dated/2012-03-05/evaluation-app-maroc-2010.pdf (accessed December 1, 2014).

73 WSRW, P for Plunder, 9. Toby Shelley put the ‘known exploitable reserves’ in 2004 at 132 million tonnes, Shelley, Endgame in the Western Sahara, 70.

74 OCP 2014 Prospectus, 79. The figure is stated as 1% of 50 billion tonnes under control by OCP SA, i.e. Morocco, from the January 2013 United States Geological Survey published ‘Mineral Commodities Summaries’.

75 Metalex Resources Ltd. of Canada has conducted aerial surveys in a joint venture with Morocco's state oil and mineral development agency, ONHYM. See the company website at: http://www.metalexventures.com (accessed April 1, 2015) and the 2013 ONHYM annual report at page 32: http://www.onhym.com (accessed April 4, 2015). Exploration for petroleum on land continues, for which see again the ONHYM 2013 annual report. Hanno Resources of Australia has extensively surveyed the liberated zone and found extensive deposits of iron ore and other minerals, under technical cooperation agreements with the SADR government.

76 Groundwater resources and water use in urban areas of occupied Western Sahara is not well understood.

77 See the website of Norway's state pension fund, http://www.regjeringen.no/en/dep/fin/pressesenter/pressemeldinger/2011/statens-pensjonsfond-utland-nye-beslutni/statens-pensjonsfond-utland-to-selskaper.html?id=665637 (accessed December 15, 2014). The Swedish state pension fund has also more recently divested itself of share ownership in Western Sahara resource-receiving companies.

78 See Smith, ‘Fishing for Self-determination' and the observations of the EU Parliament Fisheries Rapporteur Carl Haglund, ‘Report to the EU Parliament Fisheries Committee, 2011', http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-2011-0394&language=EN (accessed December 1, 2014).

79 Government of Morocco, ‘La Fédération de Russie et la Question du Sahara Marocain' (undated), http://www.arso.org/Coleman/Note_Russie_Saharacorrige.pdf (accessed January 5, 2015). The Moroccan government has not contested the validity of much of the leaked documents. See e.g. TelQuel, ‘Chris Coleman: le government dénonce finalement une campagne <enragée>' (December 12, 2014); Le Monde, ‘L’étrange marocain' (January 4, 2015); Le Monde, ‘Un hacker ne peut déstabiliser à lui tout seul la monarchie marocaine' (January 6, 2015).

80 The document was made available through a Twitter account: @chris_coleman24 on November 21, 2014. It is undated, but contains information suggesting it was created after 2010. The Twitter account has sometimes been taken offline. See e.g. TelQuel, ‘Twitter a supprimé le compte de Chris Colement, sans s'expliquer' (December 17, 2014).

81 Palestine Wall Advisory Opinion, paras. 155 and 159 [citation omitted]. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136

82 The United Nations Secretariat had called on the government of an independent Timor-Leste after 2002 to consider pursuing criminal investigations into serious human rights violations during Indonesia's occupation from 1975 until 1999 and notably arising in the months prior to the August 1999 self-determination referendum, without result. See Mohamed C. Othman, Accountability for International Humanitarian Law Violations: The Case of Rwanda and East Timor (New York: Springer, 2005).

83 See the 2014 ‘Report of the Secretary-General on the situation concerning Western Sahara' which noted continuing protests over resources (April 10, 2014), UN doc. S/2014/258.

84 As noted above, Spanish criminal law and therefore Spain's complementary jurisdiction under the Rome Statute of the International Criminal Court now appear to apply in Western Sahara.