The Ethics of Fertiliser

If the farmers of Australia knew the story behind the superphosphate they routinely apply on their lands, they would have to wrestle with a difficult moral dilemma do they continue using it or boycott this vitally needed commodity?

Because the superphosphate used in Australia is bought at an enormous cost a cost paid by the people of Western Sahara through their torture, rape, murder and dispossession.

The story of how farmers have found themselves in this situation has echoes of the AWB wheat-for-weapons scandal. And like that controversy, it involves Australian companies doing business with an oppressive regime under the watchful eye of the Department of Foreign Affairs and Trade (DFAT).

‘If DFAT told us not to import the phosphate from Western Sahara, we wouldn’t,’ said Neville Heydon, Corporate Affairs Adviser for the Australian fertiliser company Incitec Pivot.   ‘But they haven’t told us to stop importing it and the UN advice is not so clear on it either.’

Before addressing the legality of the importation of phosphate from Western Sahara, a brief history of that country is necessary.

The people of Western Sahara, the last colony in Africa, are one of the few peoples in the world still under occupation. Western Sahara, a territory the size of the UK and very rich in fishing resources, phosphate, minerals and possibly oil, has been recognised as a Non-Self-Governing Territory  by the United Nations since the early 1960s.

At that time it was decided that Spain, the administrating power of the territory, should co-operate with the international community in the decolonisation process recommended by the UN, and a referendum on self-determination was supposed to take place in 1975.

Instead, in 1975, Spain, Morocco and Mauritania signed an illegal tripartite agreement, the ‘Madrid Accords’,by which the Spanish administration withdrew from the territory leaving it to the two neighbouring countries, but maintaining a privileged priority in the exploitation of Western Sahara’s natural resources.

Morocco and Mauritania invaded Western Sahara in early November 1975.

Eye witnesses in the occupied zones talk about entire groups of nomads killed by the Moroccan army at the end of 1975. These people were arrested, tortured, some had their children killed before their eyes, and entire families were buried alive in common graves near the regions of Lamsseid, Jdeiria and Houza.

Those who succeeded in fleeing the massacres are now living in one of the most inhospitable zones in the world, the Hamada desert in southwestern Algeria.

In the occupied zone of Western Sahara, the Saharawi people were arbitrarily arrested and abducted by Moroccan police, and then imprisoned and tortured in secret detention camps. The Saharawi organised themselves into an armed resistance and after a long and bloody war Mauritania withdrew and Morocco, with military help from the United States and France, took possession of most of the territory.

In 1987, the Moroccan authorities forced more than 10,000 Saharawi students to give up their studies, and deported them to Moroccan cities to work in the Moroccan administration. In the same year, more than 300 young Saharawi were arrested and tortured by Moroccan police 74 of them disappeared until 1991, when they reappeared completely broken. The stories they told were of torture and humiliation, of women being raped and dozens of prisoners killed under torture.

In 1991, a ceasefire was negotiated and the UN Mission for the Referendum in Western Sahara established. However, Morocco has steadfastly refused to allow a referendum on independence. It also rejected a 2003 peace plan put forward by then United Nations special envoy James Baker.

In May 2005, after the Moroccan king clearly declared that he was not willing to respect the Saharawi people’s right to self-determination, the Saharawi living in the occupied zone started a peaceful and popular uprising. The uprising continues to this day.  (link here).  

So what has all that distant horror and misery got to do with Australian farmers trying to grow crops and feed their flocks?

Western Sahara has the largest and best supply of phosphate rock in the world. Phosphate is the mineral used in the chemical fertiliser known as superphosphate, which is used across Australia for pasture improvement and crop growth. It is sold domestically by three companies: Incitec Pivot which has 65 per cent of the market; CSBP (Wesfarmers) and Impact which share the remaining 35 per cent of the market between them.

All the superphosphate sold by these three companies contains phosphate mined in Western Sahara and sold by Morocco in contravention of UN directive and advice. It is mined and exported without the consent of the Saharawi people. In fact, Morocco will not even allow Saharawi to work in the phosphate mines.

Incitec Pivot’s Neville Heydon is correct when he says DFAT has not forbidden them from importing the mineral. On 27 May 2006 DFAT issued the following statement: (DFAT site)

Morocco Economic and Trade information
The Department of Foreign Affairs and Trade notes that given the status of Western Sahara as a Non-Self-Governing Territory, there are international law considerations with importing natural resources sourced from the Western Sahara. We recommend that companies seek legal advice before importing such material.

However, the legal advice issued by the UN is crystal clear. As Hans Corell, Under-Secretary-General for Legal Affairs within the UN made clear in February 2002 (link here).

The question addressed to me by the Security Council, namely, ‘the legality of actions allegedly taken by the Moroccan authorities consisting in the offering and signing of contracts with foreign companies for the exploration of mineral resources in Western Sahara,’ has been analysed by analogy as part of the more general question of whether mineral resource activities in a Non-Self-Governing Territory by an administering Power are illegal, as such, or only if conducted in disregard of the needs and interests of the people of that Territory.

An analysis of the relevant provisions of the Charter of the United Nations, General Assembly resolutions, the case law of the International Court of Justice and the practice of States supports the latter conclusion.

Therefore, the only way the importation of phosphate from Western Sahara could be considered legal is if Incitec Pivot, Wesfarmers and Impact believed Morocco was not disregarding the needs and interests of the Saharawi.

The report written by the UN Office of the High Commission for Human Rights in September 2006 makes it clear this is not the case, nor is it possible to maintain this belief in light of the facts.

Incitec Pivot argues the problem is as practical as it is political. If they stop sourcing their phosphate from Western Sahara that only leaves Togo, Nauru and Australia as potential supp
lies. This is problematic because, the company argues, the quality and amount of phosphate available from these countries is inferior to that of Western Sahara. As Heydon explained: ‘We’re dependent on rock from Western Sahara to supply Australian farmers.’

While there is no doubt the three companies involved pay Morocco well for the resource, it is unclear how the farming communities across Australia feel about being on the receiving end of goods obtained through a brutal military occupation.

However, there is an alternative that has yet to be explored.

Last year the Polisario Front Western Sahara’s liberation movement and the SADR Western Sahara’s government in exile negotiated mining exploration licenses with a number of UK and EU oil companies. The agreement stipulates that when the Saharawi have been given a vote on their independence and when they are a self-governing country, these companies will have the right to explore for oil and gas within Western Sahara.

It is not beyond the realm of possibility for Wesfarmers, Incitec Pivot and Impact to explore a similar arrangement.

In the meantime, farmers will have to make up their own minds about whether to continue using a product that has such a bloody and cruel origin.