Redrawing trade routes through litigation: phosphates and the Polisario in Panama and South Africa

Ongoing colonial occupations represent a challenge to the very foundations of the post-war international order that emerged in the 1950s and 1960s. Litigation campaigns in the twenty-first century have been one way of facing this challenge, attempting to reconstruct the right to self-determination of colonial peoples for the twenty-first century in the process. In 2017, the Front Polisario brought coordinated actions in Panama and South Africa seeking to arrest phosphate shipments mined by Morocco in the territory of occupied Western Sahara. To do so, it argued on the basis of the right to self-determination and permanent sovereignty over natural resources. In South Africa its arguments succeeded. In Panama they did not. So how did a desert liberation movement mount a transnational litigation campaign to disrupt global trade in phosphates? Did it work? And what can this tell us about the utility of international law in facing ongoing foundational challenges to the international order? As the understudied cousins of the Polisario’s high-profile campaign at the European Court of Justice, these cases pull focus on a rare attempt to operationalise the right to colonial self-determination through litigation. As such, they speak to two broader bodies of literature, one concerned with the efficacy of international law in domestic courts, the other with the strategic use of international law by Third World actors. Bringing these bodies of literature into conversation with each other, these cases push us to think about how Third World actors can make use of international law in domestic courts and what they are able to achieve both as a matter of law and fact. As a matter of impact, this article argues that these litigations were successful on two counts: putting the exploitation of Western Saharan resources on the map and taking established Moroccan trade routes off it. As a matter of law, it is less clear whether these cases have developed the right to self-determination, as they are confined to interim orders and dependent on the recognition of the Saharawi Republic for replication in other jurisdictions.