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On W. Sahara, After ICP Asks of Atlas Copco & Mining, UN's 2 Limb Test

By Matthew Russell Lee

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]
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.

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