Morocco has broken international law by signing an agreement with US-based Kosmos Energy to permit drilling in the Western Sahara, says Hans Corell, a former under-secretary-general for legal affairs and legal counsel of the UN.

Kosmos Energy started drilling in the offshore Cap Boujdour region of the disputed territory on 19 December using the $100m drill ship the Atwood Achiever.

“Morocco is breaking international law… signing an agreement of this nature is in violation of international law,” the former head of the UN Secretariat Office of Legal Affairs told MEED. “I am looking to the Security Council and the responsibility that the council has under the UN Charter.”

The Western Sahara is claimed by both the government of Morocco and the Western Sahara’s Algeria-backed national liberation movement, the Polisario Front. While most of the region is controlled by Morocco, neither entity’s sovereignty is recognised by the UN.

Kosmos originally signed an agreement with Morocco to drill in the Western Sahara in 2006. It then renewed the licence in 2011 and signed a further deal with Britain’s Cairn Energy and Morocco’s National Bureau of Petroleum & Mines (ONHYM) in October 2013.

The current dispute over sovereignty is a continuation of an insurgency by the Polisario Front against Spanish colonial forces, which began in 1973.

The conflict escalated into a war involving Morocco and Mauritania after Spain withdrew from the area in 1975. Mauritania withdrew from the conflict in 1979 and in 1991 a ceasefire was brokered by the UN between Morocco and the Polisario Front.

The two sides agreed to the ceasefire as a condition of a peace process mediated by the UN, which has so far failed to result in a permanent solution to the dispute.

Documents signed by Kosmos and Morocco in 2011 refer to the Western Sahara as the “southern provinces of the Kingdom of Morocco”, wording that Corell says is “completely incompatible” with the UN-mediated peace process.

According to Corell, Morocco has violated the principles of international law applicable to mineral resource activities in ‘non-self-governing territories’, the term used by the UN for countries that are yet to complete the decolonisation process.

Since 2002, a UN legal ruling made by Corell has been at the centre of the debate about mineral exploitation in the Western Sahara.

In the ruling, he stated that drilling for oil in the territory would be legal if it was done for the benefit of the local population, but “to proceed in disregard of the interests and wishes of the people of Western Sahara would be in violation of the international law”.

Kosmos Energy has stated it believes its actions are in keeping with both the wording and spirit of Corell’s ruling and, on 19 December 2013, it signed a joint declaration of principles with Morocco, pledging that its exploration and production activities would be in accordance with international standards including the 2002 ruling.

Corell says both the government of Morocco and Kosmos Energy have not adhered to his 2002 ruling.

“I have seen that they [Kosmos executives] think their actions are in conformity with my legal opinion, and my determined opinion is that they are not,” he told MEED. “Signing an agreement in which Morocco refers to Western Sahara as the southern provinces of the Kingdom of Morocco is at variance with corporate social responsibility and the principles to protect, respect and remedy.”

Corell’s comments come at a time of intensifying tensions in the region and increased fears of a possible return to violence.

In a November speech, Morocco’s King Mohammed VI denied that the Western Sahara conflict was a decolonisation issue, saying the region is a Moroccan territory.

The Polisario Front responded in December by conducting military maneuvers in the southern region of Western Sahara.

Commenting on the military exercises, Saharawi Arab Democratic Republic (SADR) Minister of Defence Mohamed Lamine Ould el-Bouhali said the Saharawi still believed that the UN would be able to resolve the Western Sahara conflict, but warned that “the Saharawi national army is ready to return to armed struggle against the Moroccan regime.”

In an emailed statement to MEED on 21 December, a spokesman for Kosmos Energy said the company believed exploration and production in the Western Sahara would help to develop the region and lift local communities out of poverty.

“We believe exploration and, if successful, production can bring real benefits to the people of the Western Sahara,” he said. “Understanding whether oil and gas resources exist offshore is the first step toward realising those potential benefits.”