UNITED
NATIONS, April
18 -- When the
UN and its
Global Compact
were first
asked
about the
provision of
heaving mining
equipment for
projects in
Western
Sahara, the
Compact said
it had
“discussed the
matter of
foreign
activities in
the Western
Sahara
territory with
the UN Office
of Legal
Affairs
[which]
advised that
they are not
in a position
to
determine
whether the
activities in
Western Sahara
would
contravene
with the
principles of
the Global
Compact.”
At
issue is the
Swedish firm
Atlas Copco
having sold
mining
equipment 2
Pit Viper
PV-275 to Bou
Craa. Atlas
Copco is a
member of the
Nordic
UN Global
Compact and is
also member in
the the
steering
group.
Inner
City Press published the
first UN /
Global Compact
answer on
April
17, and
went to the
April 18 UN
noon briefing
and asked
about it: how
could the UN
Office of
Legal Affairs
in 2013 under
Patricia
O'Brien
not follow its
2002 ruling
under Hans
Corell?
Maybe
it was the
comparison,
but Thursday
afternoon this
response
arrived:
Subject:
Re:
Western Sahara
From: UN
Spokesperson -
Do Not Reply
[at]
un.org
Date: Thu, Apr
18, 2013 at
4:16 PM
To:
Matthew.Lee [at]
innercitypress
[dot] com
Regarding
your
question on
Western
Sahara, here
is our answer:
In
2002 the UN
Legal Counsel,
at the request
of the
Security
Council,
issued a legal
opinion on the
status of
Western
Sahara, a
Non-Self-Governing
territory
under Article
73 of the
Charter, which
addressed the
issue of
foreign
economic
activities in
the territory
(“the
opinion”) (see
S/2002/161).
While
the opinion
focused on the
legal
framework
concerning the
exploitation
of mineral
resources in
Western
Sahara, it set
out the
applicable
principles
concerning any
economic
activities in
Non-Self
Governing
Territories.
The opinion
highlighted
that in
recognizing
the
inalienable
rights of the
peoples of
Non-Self-Governing
Territories to
the natural
resources in
their
territories,
the
General
Assembly has
consistently
condemned the
exploitation
and
plundering of
natural
resources and
any economic
activities
which are
detrimental to
the interests
of the peoples
of those
Territories
and
deprive them
of their
legitimate
rights over
their natural
resources.
However,
the
opinion also
noted that the
General
Assembly has
drawn a
distinction
between
activities
that are
detrimental to
the peoples of
these
Territories
and those
directed to
benefit them.
In particular,
it referred to
General
Assembly
resolution
50/33 of 6
December 1995,
paragraph 2,
in which the
General
Assembly
affirmed “the
value of
foreign
economic
investment
undertaken in
collaboration
with the
peoples of the
Non-Self-Governing
Territories
and in
accordance
with
their wishes
in order to
make a valid
contribution
to the
socio-economic
development of
the
Territories”
(emphasis
added),
which position
has been
affirmed in
later
resolutions.
The
opinion
concluded that
“recent State
practice,
though
limited, is
illustrative
of an opinio
juris on the
part of both
administering
Powers and
third States:
where resource
exploitation
activities are
conducted in
Non-Self-Governing
Territories
for the
benefit of the
people of
those
Territories,
on their
behalf or in
consultation
with
their
representatives,
they are
considered
compatible
with the
Charter
obligations of
the
administering
Power and in
conformity
with
the General
Assembly
resolutions
and the
principle of
‘permanent
sovereignty
over natural
resources’
enshrined
therein”
(emphasis
added).
Based
on the
foregoing
analysis, it
is our view
that
principles of
international
law described
above
establish a
two-limb test
with
respect to the
carrying out
of foreign
economic
activities in
Non-Self-Governing
Territories:
first, such
activities
must be for
benefit of the
people of
those
Territories;
and second
they must be
carried out on
their behalf,
or in
consultation
with their
representatives.
Whether
these
two conditions
are met in
this case is
of course a
question of
fact on which
the Office of
Legal Affairs
is not in a
position to
advise.
Tellingly,
Atlas
Copco since
its sale of
the equipment
has put out
this:
“The
situation in
Western Sahara
is complex and
different
decisions have
been taken
among
companies that
are currently
doing business
there or
have done so
in the past.
Some
corporations,
for example
some
Norwegian
shipping
companies,
have decided
to discontinue
doing
business in
Western
Sahara.
However, many
companies are
still active
in Morocco and
in Western
Sahara.”
But
can these pass
the “two-limb
test”? Watch
this site.
, 
