No place for political piracy in maritime commerce
The shipping community owes a debt of gratitude to both Panama and Morocco’s OCP after political splinter groups seek to use the rule of law to seize vessels and hijack cargoes
July 26, 2017
By Philippe Delebecque
Recently, Morocco-based enterprise OCP, a world-leading producer of phosphate and fertiliser, took a difficult but commendable decision: it told a South African court it would not participate in a trial relating to the seizure of a vessel transporting its phosphate cargo through South African waters.
This comes as the latest in a series of developments that should be of broad and serious concern, as it could determine whether global maritime commerce — an industry responsible for about 90% of world trade — can be hijacked by a new and virulent form of political piracy.
By way of background, the phosphate in question was mined in the Western Sahara, a United Nations (UN) denominated “non-self-governing territory”, the ultimate political status of which is subject to a well-established process led by the UN Security Council. Not content to have that process run its course, a separatist splinter group in the region tracked the movement of vessels carrying phosphate cargoes, then swept into court — first in South Africa, then Panama — seeking orders to seize the vessels. In both countries, the initial proceedings were conducted ex parte — without the shipper’s or owner’s participation or even awareness — and both vessels were detained.
Panama’s Maritime Court acted first: on 5 June, it dismissed the claim, and its opinion clearly re-affirmed the principle that domestic courts are not the proper venue for the resolution of a political and/or diplomatic matter, such as cargo ownership in the Western Sahara. It also ruled that the plaintiffs presented no evidence that the cargo onboard belonged either to them or to their potential customers. However, days later, the South African court deemed itself competent to hear the matter at trial.
On 13 July, OCP took a step no law-abiding enterprise would take lightly: it exposed the South African process for what it was and stopped it in its tracks. In announcing its decision not to proceed to trial, the company said: “By deciding to hold over for trial the matter of the phosphate cargo vessel Cherry Blossom … the South African court has rendered a transparently political opinion and committed a serious abuse of power. This judicial over-reach threatens the freedom and security of international trade, while it contradicts core legal concepts and undermines the UN resolution process. Thus, participating in any trial before this forum would give further credit to a process without legal legitimacy.”
To Panama’s court and to OCP, the maritime commerce community owes its gratitude.
The court — charged with adjudicating lawful commerce through one of the world’s busiest transcontinental shipping lanes — courageously re-affirmed a principle that separates legal considerations properly within its purview from political ones subject to another well-established resolution process already in place.
Broadly speaking, that principle is crucial and it transcends the Western Sahara or any other similar dispute. According to the UN there are 17 fully “non-self-governing territories” across the world, many with splinter groups seeking to foment instability. And countless other “hot spots” exist for “non-self-governing territories” to go to a national court with a seizure claim as a resolution mechanism.
One can add that under enforceable positive law, in order to seize a ship, the claimant has to reach two essential conditions. First, they must demonstrate a maritime claim, and secondly, he must prove that the object of seizure is the defendant’s property. Besides, it is one thing to seize the ship and another to seize the cargo. In other words, in order to seize the cargo, it is not possible to seize the ship. The only person who can seize the ship is the creditor of the ownership. By all means, in these cases, the cargo, object of seizure, is the property of OCP, or of OCP buyers and not the property of the Western Sahara separatist movement.
The company, OCP, was willing to forfeit its property — and forego its conviction of victory on the law and the facts — for the higher principle that courts, cargoes and commerce cannot be hijacked and placed at the mercy of narrow political ends.
This industry depends on consistent norms being followed across the multiple water bodies it traverses. Today’s political pirates prefer using faux legal filings over their predecessors’ cannon-fire to seize our cargoes and rile our seas. No nation reaping the rewards of healthy and lawful maritime commerce can afford to see them succeed.
Philippe Delebecque is a professor of law at Sorbonne Law School and president of the Paris Chamber of Maritime Arbitration. He also has served as a consultant to OCP.