published by The Court of Conscience magazine Issue 2, 2008. A publication of
The Law Society at the University of New South Wales (Australia).
The Western Sahara issue is an important and relevant issue to all those who are interested in the role of the United Nations, human rights, justice and peace. Western Sahara is situated in northwest Africa along the Atlantic coast, and was a Spanish colony for almost 100 years. In 1975, Spain signed a secret agreement with Morocco and Mauritania, dividing the territory between them.1 Both Morocco and Mauritania invaded and illegally occupied territory. However, in 1979, Mauritania abandoned its territorial claim over Western Sahara and signed a peace treaty with the Indigenous people. Despite this, Morocco maintains administrative control and continues to claim sovereignty over most of the Territory. The United Nations (‘the UN’) and the Organisation of African Unity (‘the OAU’) have been trying to organise a referendum on self-determination in Western Sahara.2
The UN Decolonisation Program
The Charter of the United Nations recognises the right of peoples to self determination.3 Furthermore, the UN passed landmark resolutions and established important decolonisation programs.4 In 1963 Western Sahara was included in the UN list of the non-self-governing territories, and in October 1964 the UN Decolonisation Committee adopted its first Resolution on Western Sahara, urging Spain to start the process of decolonising the territory.5 The UN General Assembly issued a similar Resolution on December 16, 1965.6
Initially, Spain was reluctant to start the process of decolonisation; but in August 1974, it informed the UN that it was prepared to organize a referendum on self-determination. In this referendum, the people of Western Sahara could choose either full independence or to remain attached to Spain. Morocco and Mauritania opposed the referendum idea as they wanted the Territory for themselves.
The Moroccan Sovereignty Claim and the ICJ
In order to postpone the referendum, Morocco, with the support of Mauritania, asked the UN General Assembly to seek arbitration from the International Court of Justice (‘the ICJ’) and to give legal advice on this matter. On 13 December 1974, the ICJ was asked to give an advisory opinion on: (1) whether or not the Western Sahara had been terra nullius - a territory belonging to no one - at the time of Spanish colonisation; and (2) if it was not terra nullius at the time of Spanish colonisation, then what was the legal relationship between Western Sahara and Morocco, and Western Sahara and Mauritania7.
In international law, sovereignty has two elements: territorial and jurisdictional.8 Morocco claims that before Spanish colonisation, Western Sahara was Moroccan territory. To satisfy the jurisdictional test for sovereignty, it cites evidence that at the time of Spanish colonisation, some Sahrawi tribes paid allegiance to the Moroccan throne. Specifically, it relies on the Islamic concept of the bayaa, an allegiance amounting to ‘a contractual agreement whereby the Muslim community offered a conditional loyalty to its caliph (leader) in response to his recognition of his obligations under the sharia’9.
On this basis, Morocco claims firstly that it, not Spain, has a legitimate claim to sovereignty over the territory of Western Sahara. It also claims that the principle of uti possidetis juris,10 which holds that colonial boundaries cannot be altered on independence or decolonisation, applies to that territory.
The ICJ studied all the documents presented to it by Morocco, Mauritania, Spain and Algeria; but the Sahrawis were not allowed to appear before the Court since the ICJ can only hear evidence from States.11 After twenty-seven sessions, the ICJ issued its opinion on October 15, 1975.12
The Court decided unanimously that Western Sahara was not terra nullius when Spain proclaimed a protectorate over it in 1884, since it ‘was inhabited by peoples which, if nomadic, were socially and politically organised in tribes and under chiefs competent to represent them’.13 The court then gave the conclusion of its opinion regarding the legal ties between Western Sahara, Morocco and Mauritania:
The Court’s conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonisation of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.14
The decision of the ICJ is of great significance. As Thomas Frank put it, ‘the judges asserted the supremacy of the norm developed by UN resolutions and the practice of decolonisation: the Sahrawi population was entitled to self-determination within the perimeters of the existing colonial entity’.15 It is clear that the ICJ decision is a rejection of the Moroccan claim of sovereignty over Western Sahara.
The Postponed Referendum
Despite the Court’s decision, Morocco and Mauritania invaded and occupied Western Sahara in 1975 in a grave violation of international law. The UN Security Council adopted a resolution deploring the invasion and calling on Morocco to withdraw form the Territory16, but the resolution was never enforced. The invasion provoked a prolonged war; causing great suffering to the Indigenous Sahrawis who have been denied their basic human rights. Yet it is a human tragedy rarely noticed by the rest of the world.
In August 1988, as result of war-weariness and international pressure, Morocco agreed to a UN-OAU peace process. Central to the UN-OAU peace plan (‘the plan’) is the holding of a referendum providing an opportunity for the Sahrawi people to exercise their right to self-determination in a free and fair manner. A cease-fire was declared in September 1991 and a UN mission (MINURSO) was deployed in the territory. According to the original plan,17 the referendum should have taken place in January 1992.
Furthermore, Morocco signed the Houston Agreements negotiated under the auspices of James Baker, the former Personal Envoy of the Secretary-General. The agreements were endorsed by the Security Council and should have lead to the organisation of the referendum.
In an attempt to break the deadlock, James Baker presented what became known as the Baker Plan that was endorsed by the Security Council in July 2003. The plan envisaged four to five years autonomy under Moroccan sovereignty, followed by a referendum on the final status of the Territory in which Moroccan settlers who resided in the territory since December 1999 would vote. As a gesture of good will and in a spirit of co-operation, Polisario [a Sahrawi movement working for Western Sahara’s independence- ed.] accepted the Plan despite the risks involved in it- but Morocco rejected it.
In August 2004, Morocco decided to abandon the peace process and the referendum idea altogether, due to fears of the verdict of the Saharawi people. In response, the UN Security Council called on Morocco and Polisario to enter into direct negotiations without preconditions, in good faith, and with a view to ensuring the respect for the right of the Saharawi people to self-determination. Morocco and Polisario met four times at Manhasset neat New York in 2007 and 2008 for direct negotiations under UN auspices, but the talks have so far failed because Morocco refuses to consider the referendum idea and will only offer what it calls “autonomy”; which the Saharawis consider falls short of the right of self-determination.
The right of peoples to self-determination is enshrined in the declarations of the United Nations and the Organisation of African Unity.18 Furthermore, the ICJ verdict upheld that the Sahrawi people are entitled to exercise this right. Therefore, the invasion and occupation of Western Sahara in 1975 was an act of aggression and a violation of international law.
The UN has so far failed in its efforts in Western Sahara, because of the lack of major powers in the international community politically and publicly supporting the referendum. Unlike the referendum process in East Timor, which has benefited from the involvement of regional and international actors, the Western Sahara peace process has not yet attracted international attention. Unless there is international pressure on Morocco, the chances of the referendum proceeding in Western Sahara are very slim.
After 45 years on the UN agenda, it is tragic that Western Sahara’s decolonisation is still incomplete and that the Sahrawi people are still denied their basic and legitimate right to decide their own future. At the same time, the Saharawis have faced horrendous human rights abuses by Morocco. In addition, their natural resources continue to be illegally exploited by companies from all over the world, including Australia. 165,000 Saharawis have endured life in harsh conditions in refugee camps for the past 33 years.
It is the duty of the international community to make sure that a final and lasting decolonisation process is achieved in Western Sahara. The alternative to a peaceful solution will be the resumption of hostilities and the destabilisation of the whole region, something the Saharawis wish to avoid.