The role of natural resources in the Western Sahara conflict, and the interests involved

Some attribute the rich phosphate deposits in Western Sahara as one of the reasons why
Morocco developed claims to Western Sahara in the first place. “One Kuwait in the Arab world is enough”, King Hassan II allegedly said, justifying the 1975 invasion mineral rich Sahara.

Although there might have been several reasons to the occupation itself than only natural resources, the resources today play a central role in strengthening Morocco’s presence in the territory. The industries offer job opportunities to tens, or perhaps hundreds, of thousands of Moroccan settlers, and provide important incomes for the Moroccan government. The international commercial presence in Western Sahara furthermore offers a sign of political acceptance of the occupation.

The parts of Western Sahara under Moroccan control contain two important natural resources that are crucial to industries worldwide: fish and phosphates. In addition to that, there is a growing agriculture industry, sand and possibly oil.

After going through the industries and the international presence, while touching upon its socio-economic effects, I will look at the reasons the companies give for their presence, and the political implications of the activities.

The Western Saharan resources

The phosphate industry
Spain made the first phosphate discoveries south east of El Aaiun in the late 1940s. Up until the 70s Spain invested largely in developing infrastructure for the phosphate production. Today, one can still see the outcome of the investments: the world’s largest conveyor belt, 100 kilometers long, transporting the phosphates from the deposits in Bu Craa, out to the harbour where the phosphate rock is washed, dried, stockpiled, and later shipped over to vessels waiting to be filled up.

And it is indeed a flourishing industry nowadays. Anyone visiting El Aaiun harbour in October-November 2008 could see up to 5 bulk vessels lining up one after the other, waiting to be loaded with the cargo.

It is not that easy to see, however, how the Moroccan take-over of the phosphate industry can have been beneficial to the Sahrawis. A report by the French organisation France Libertés -Fondation Danielle Mitterrand , showed that the Sahrawis have been systematically marginalised from the phosphate industry in Bu Craa. In 1968, few years before Morocco took control over the phosphate mines, most of the 1600 workers in the industry were Sahrawis. Today, only some 200 people of the 2000 workers are reported to be of that origin, according to the Sahrawi workers themselves. The rest are Moroccans who have moved into the territory.

Every single week, discontented retired Sahrawi phosphate workers demonstrate in the streets of El Aaiun against what they say are lack of payments and rights.

With a production of around 30 million tonnes of phosphate rock annually, Morocco is the biggest exporter of phosphate rock in the world. Of that volume, about half is exported, and the last years, 3 million tonnes of that volume are of Western Sahara origin. The output from the Western Sahara mines has gradually increased from 1,5-2 million tonnes during the 90s. The volume has over the years normally been limited by lack of sufficient infrastructure, such as insufficient power and freshwater for Morocco’s state phosphate company, OCP.

With this year’s boom in prices and production, I would estimate that the production for 2008 will reach an all-time record, ending up closer to 4 million tonnes.

During the last few years, one has now uncovered which companies in the world are importing the phosphates from Western Sahara. Approximately 16 companies from 12 countries are today engaged in imports of these phosphates. Most of these firms import under long-term contracts, some up to 10 years of duration. The phosphates are used mainly for production of fertilisers for the agriculture industry.

The biggest importers are to be found in USA, New Zealand, Australia, Mexico and Lithuania. Medium importers are located in Colombia, Venezuela, Spain, Croatia, while Bulgaria, India and a few more imports on a more irregular basis.

With the increased production – and most of all due to increase of phosphate prices – it is easy to establish that OCP’s incomes in Western Sahara have truly boomed. For several years, the global phosphate rock prices were more or less stable, at around 50 dollars a tonne. Then, from 2007 till today, the price of phosphates has increased over 800%. The last weeks of October-November 2008, have seen a slight drop of prices again, and one tonne is now supposedly worth around 414 dollars.

One single cargo of phosphate, for instance the one containing the 70.000 tonnes of phosphate rock carried by a Swiss owned vessel that arrived Louisiana, USA, only two weeks ago, can thus be of the same value as the entire multilateral humanitarian aid to the refugee camps in one whole year, namely around 30 million USD.

Around 100 vessels depart from El Aaiun every year. Perhaps 150-300 shipping companies are involved in the transports annually. These companies come from practically all European, North American and Asian shipping nations.

The United States is the biggest importer. For more than a decade, the US has received 99% of its imports from Morocco/Western Sahara. US importers could have imported a total of roughly 10 million tonnes of Saharan phosphates over the last 20 years. With today’s phosphate price, if these 10 million tonnes of phosphates had remained untouched awaiting a settlement of the conflict, its value would today have been around 4 billion USD – or 138 times as much as what the international community gives to the refugee camps in Algeria through multilateral aid every year.

Morocco’s annual incomes from Bu Craa could for 2008 amount to around 1,7 billion dollars. That equals around 10000 dollars per Sahrawi refugee per year. Multilateral aid to the refugee camps for 2007 equals 1,7 percent of the estimated income from Bu Craa for 2008, given that price is 414 dollars and production is 4 million tonnes.

It is hard to come with a good explanation to the increased phosphate prices. One factor can be attributed to the increased volume of biofuel production, which has triggered a high demand for fertilisers. This is rather ironic, because biofuel is normally considered a renewable replacement of hydrocarbons, something which it is clearly not. Its expansion is rather dependent on another non-renewable resource, namely phosphorous.

The diminishing phosphate rock deposits globally means that other leading phosphate producing states, such as the US and China, are reluctant to export their own phosphate rock.

It is estimated that the deposits in Bu Craa will be depleted by 2040-2050. That time period corresponds with what researchers estimate to be the global peak for phosphorous production. With increased food and biofuel production, changed diets for a large part of the world population, and an intensified scramble over the global phosphate reserves, it is very likely that we will observe a continued price increase for phosphate rock the coming decades, and thus unprecedented income for OCP’s operations inside Western Sahara.

“With US and China tightening its grip around their own mined phosphates, and as the phosphate prices will continue to grow, the mines in Morocco and occupied Western Sahara will become increasingly important for world phosphate importers and for the global agriculture industry. Western Sahara’s phosphate reserves will become a real gold mine for Morocco in the future”, says one of the few researchers on global phosphate industry, Dana Cordell, at the Global Phosphorus Research Initiative .

The Fisheries
Only a small minority of the Sahrawis, mostly from the Dakhla region in the south, have traditionally been engaged in fishing activities. With very few exceptions, the industry today remains under Moroccan, not Sahrawi, control.

The fisheries industry has a crucial effect on the demography in the region, and thus probably also on the possibilities on finding a solution to the conflict. With incentives such as reduced taxes and subsidies, housing programmes and social projects, the Moroccan government has succeeded to attract tens of thousands of unemployed people from cities such as Agadir and Casablanca to settle in Western Sahara. And these people to a large extent find their jobs related to the growing fisheries industry.

With the fish stocks diminishing after overfishing offshore Morocco proper, particularly offshore the Mediterranean coast, Western Saharan fisheries have become increasingly important for Morocco. The main species are types of cephalopods and sardines. Some estimates suggest up to 70-90 percent of the Moroccan catches are being landed in the harbour of Western Sahara. This has been facilitated by big investments in the ports of Dakhla, El Aaiun and Boujdour.

I would estimate a few hundred foreign companies have been identified in these industries by now, both fishing companies, manufacturers, exporters and importers/distributors. This has been built up around a flourishing industry of processing, canning and freezing plants that have popped up along the coast. The last decade has also seen developing an industry of fishmeal and fish oil exports, used for production of animal foods and health products in Europe. The fish and fish products are exported mainly to the Middle East, Europe and East Asia.

The fisheries itself offshore Western Sahara is taking place on three levels.
a) EU or foreign states (such as Russia, Japan) having agreements with Morocco. These bilateral or multilateral agreements with Morocco do never mention Western Sahara itself, but they are de facto applied for the waters adjacent to that territory.
b) private commercial fishing under Moroccan flag.
c) small-scale fishermen, living in settlements along the Western Sahara coast.

I will now quickly go through these three levels.

The best-known foreign fisheries agreement is the EU-Morocco Fisheries Partnership. Although the Russian agreement might be just as important on the fisheries sector, I will only look into the EU agreement here.

There have been long traditions for foreign fishing in Western Sahara waters. For centuries, fishermen from the Canary Islands and from the Spanish mainland have been chasing the resources off the Western Saharan coast. Just as Spain did with maintaining rights in the phosphate industry when leaving Western Sahara, so they did with the fisheries. When Spain signed the Madrid Accords with Morocco and Mauritania, they made sure that they maintained rights to licences offshore the territory. These rights have been more or less kept ever since, interrupted only in shorter periods. This has been very detrimental for the Sahrawis. When Spain became member of the EU, Spain brought this tradition into the EU cooperation. Still, today, Spain has controlled the process of the negotiation with Morocco, as well as most of the licences. 100 of the 114 licences under the current 144.4 million euro EU-Moroccan Fisheries Partnership Agreement fell to Spain.

The EU-Moroccan Fisheries Partnership Agreement itself identifies that it is applicable to “the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco”. The four years Agreement entered into force on March 1st, 2006.

When it was asked to have Western Saharan waters specifically excluded from the Agreement, the EU Commission replied it was not necessary. “The Commission proposal is in conformity with the legal opinion of the United Nations issued in January 2002”, it stated , clearly misinterpreting the UN advice, and the Sahrawi people’s wishes.

The EU chief negotiator of the Agreement, César Deben, stated in fact that that the EU Commission considers Western Sahara waters to be Moroccan, according to the Madrid Accords from 1975, an agreement that the same UN opinion in practice considers invalid. Even more contradictory, most of the fisheries are taking place offshore the southern parts Western Sahara – in the territory that the Madrid Accords ceded to Mauritania, not to Morocco.

After 7 different written questions to the EU Commission, it finally succeeded Members of the European Parliament to get an official statement from the Commission in April 2008, that in fact fisheries have been going on inside Western Sahara under the current agreement .

The second category of fisheries is based on commercial licences to private companies under Moroccan flag, normally to owners of trawlers. Generally, for a private company to enter fishing grounds outside of the governmental or EU fisheries partnerships, they must obtain Moroccan flag. Foreign firms mostly get that through joint-ventures with Moroccan enterprises. Companies from countries such as Norway, Denmark, New Zealand and probably also Namibia/South Africa seem to have been using this strategy to get access.

The last category of fisheries, is the one constituted by the small-scale Moroccan fishermen. They are either living in the towns of El Aaiun, Boujdour or Dakhla, but also in separate, smaller fishing communities along the coast.

The small-scale fisheries often end up competing with the other two levels of fisheries over fishing rights. It is interesting to notice that even the community of small-scale Moroccan fishermen are not necessarily satisfied with the Moroccan government’s issuing of licences to foreign governments or private firms. There have been incidents of demonstrations carried out by the Moroccan fisheries communities against their own government, demanding increased quotas.

There are also often reports of poor Moroccan control over the fishing, both the national and international commercial fleet, and there are occasionally reports of foreign companies exceeding their quota, or using wrong fishing nets.

The possibilities of petroleum
To the contrary of their neighbour country to the east, Morocco produces no hydrocarbons. Completely dependent on imports, and with increasing oil prices, the Moroccan government has been eager to make their own findings, both onshore and offshore its own territory.

From 2001, they continued earlier efforts from the mid-80s, and extended the petroleum searches also into Western Sahara, by granting petroleum reconnaissance licences to the French firm TotalFinaElf (later Total) and to the American energy company Kerr-McGee. The awards sparked immediate protests from Polisario Front, leading up to the much mentioned legal opinion from the UN secretariat in 2002 .

Although the UN opinion stated that "if further exploration and exploitation activities were to proceed in disregard of the interests and wishes of the people of Western Sahara, they would be in violation of the principles of international law", that is exactly what is going on today on the oil sector.

Total and Kerr-McGee withdrew from the territory few years after the UN opinion, claiming that there were low prospects of finding oil on their allotted blocks. But another company has picked up where Kerr-McGee left.

Immediately after Kerr-McGee’s departure in 2006, their Texas based partner Kosmos Energy signed a contract for continuation of the activities together with the Moroccan state oil company ONHYM. There are indications that there could indeed be located petroleum offshore the so-called Boujdour block in Western Sahara. Production is currently going on offshore North Mauritania, in what are supposedly the same geological layers. According to Kosmos Energy’s own reports, they plan to drill in the Boujdour block in 2009.

The other current petroleum project in Western Sahara, consists of a joint venture headed by the small Irish oil company Island Oil and Gas. They have a reconnaissance contract for a block onshore Western Sahara, overlapping the city of Smara, and actually covering both territories under Moroccan and Polisario control. It is not clear whether they have actually carried out exploration on the ground yet. The zone is highly militarised, and a place with frequent demonstrations by the Sahrawi organisations.

There are no sign that these oil companies have consulted the Sahrawi people prior to signing their contracts with the Moroccan government.

More industries developing
In addition to the fish and phosphates, and possibly oil, a few more key businesses have emerged over the years.

Western Sahara has for decades been an important exporter of sand. A majority of the sand purchasers have now been identified, being mostly on the Canary Island and Madeira. The importers use the sand for construction industry purposes, and for maintenance of the constructed tourist beaches.

Furthermore, since the Spanish times, various metals and minerals have been explored in the territory, such as zirconium and iron.

A French company has recently entered into some kind of agreement for retreiving uranium from the phosphate mines in Western Sahara.

In the southern parts of Western Sahara, in the Dakhla area, a big fruit and vegetable industry has developed since around 2004, based on usage of underground fresh water reservoirs. Several thousand new Moroccan settlers are employed in this industry – one Moroccan source mentions 5000 people. The exports are mainly to the close European markets.

Linked to all these businesses, a number of foreign companies work on infrastructure projects in Western Sahara, such as energy projects, port/harbour works, desalination programmes, water drilling, and lately also on tourism.

From the companies’ point of view

Sometimes you find that companies had good intentions when they decide to invest and settle in Western Sahara. Some companies have even been supported by foreign aid money, especially certain projects related to building of infrastructure or other projects with a social purpose.

Although many of them are in close contact with their own governments or multinational institutions, they do not necessarily, regrettably, encounter any form of criticism or political advice when starting upon such adventures in occupied Western Sahara.

Take a fisheries company, for example. They would normally seek some kind of advice (e.g. regarding financial support, regulations, registration) from their own authorities when they decide to go abroad. They would then normally make contact with their own fisheries ministry – and not with their ministries of foreign affairs, where the knowledge of Western Sahara issue would normally be located.

For the EU countries involved in the EU-Moroccan Fisheries Partnership Agreement, the fisheries ministries would then consult their companies on licences, catches and reporting. At times, it could actually be the ministry itself that promoted the companies to look for the opportunities in Western Sahara.

The companies are completely surrounded with other interests without knowledge of the conflict. They meet Moroccan trade partners in Fairs in Europe or in Morocco, and deal loans with banks unfamiliar with the issue. Their boards or shareholders might have never heard of the conflict.

And the information they get on the fish stocks, could be coming for instance from UN’s Food and Agriculture Organisation (FAO), which explores the occupied waters in cooperation with Moroccan research institutions, and with Moroccans on board its research vessels.

And once their operations in Western Sahara start, they hand in their catches to factories that are even certified by the European Union. When they label their products for export to the EU, the name of the certified production unit is then inserted in the certificates of origin, which accompany the product on its journey abroad. And the importer in Europe is obliged to report on which country it comes from, namely “Morocco”. There are dozens, or hundreds, of EU certified companies within Western Sahara. This is very unlike how the EU treats producers located on Israeli-occupied land.

The natural resources as politics

Taken into account that companies could avoid ever having discussed the Western Sahara issue with national governments, financial institutions, owners, industry organisations, it is perhaps not strange that some companies themselves are surprised when they suddenly come in the spotlight of campaigns from Sahrawis or from the Western Sahara solidarity movement. Some companies actually state that they have never heard of the conflict when they are approached the first time. The only source of information they ever got on the conflict, was obtained form the Moroccan trading partners in Western Sahara, or Moroccan authorities or media.

“We have been here for years, and this is the first time we hear of this issue”, one company stated in 2002. “I have been explained that the Sahrawis don’t want to take part in our project”, the CEO of another company stated in 2005.

The companies themselves often underline that they do not themselves engage in politics, only business. But that does not seem to prevent the very same companies from coming with strong political statements, in support of the Moroccan position. In that way, they become tools of the Moroccan strategy for colonising Western Sahara.

“There is no conflict. And the UN has by the way given Western Sahara to Morocco a long time ago”, said TotalFinaElf’s ethics director in 2001, after getting one of the oil reconnaissance licences offshore the territory.

“The acreage is disputed with (sic) Western Sahara, but Kosmos believes it has made the right bet as to which party will prevail”, the US oil company Kosmos Energy wrote in a recent report.

The strongest private defenders of the legality of the industry, and of the Moroccan position, are naturally those who are most dependent on the natural resources in Western Sahara, or those who have invested most money in the territory. The phosphate importers have been among most active.

For a long time, a number of the phosphate importers have claimed that their imports are in line with international law, and positive to the development of the region. This contrasts other reports by Sahrawis themselves. Only recently, has it been revealed that the phosphate companies that defend their involvement are relying on a legal analysis made by a Washington based law firm called Covington & Burling, which is supposedly proving that the phosphate industry on the ground in Western Sahara is both good for development, and in line with international law. The problem is that neither the importers, nor the US law firm wishes to disclose the legal analysis. It thus remains unknown for the public, even for the Sahrawis themselves, how the industry has come to the conclusion that the people of Western Sahara is benefiting from the industry.

Governments start taking position

In other words, in addition to the offering of employment opportunities and income for Morocco, the resource plundering has an important political dimension.

The companies are, in their turn, sometimes supported by their home governments. The political support is showed either through direct political statements favouring the companies involved, or through lack of visible will to stop them.

Many of the governments that have been confronted with their companies’ involvement state that due to the absence of UN Security Council sanctions 1) the industry must be legal and 2) there is nothing they can to do to prevent their companies from being involved.

Other arguments are also used. The New Zealand case could serve as an example. Former New Zealand Minister of Trade, Phil Goff, stated this:

“I am advised that there are no legal grounds for banning the trade from Morocco. Indeed, to do so would be subject to a legal challenge from Morocco under international trade law” . Later New Zealand would precise that such a ban can be in violation of GATT regulations. This interpretation shows also lack of ability to differ the territory of Western Sahara from the neighbouring territory of Morocco: Western Sahara is not part of GATT, only Morocco is.

He also stated that they did not know whether the Sahrawis benefited or not.

Two years later, in 2008, the government admitted that such benefits are not applied to support for the exercise of the right to self-determination. They also state that the respect for self-determination over the natural resources is a matter for Morocco to consider, not for the companies that take part in it.

“I was told by Morocco that the local community is benefiting through the provision of money, jobs, infrastructure and services. Clearly, however, such benefits are not applied to support for the exercise of the right to self-determination, including independence: Morocco continues to claim sovereignty over the Western Sahara. Whatever the rights and wrongs of Morocco’s approach, the responsibility is Morocco’s. New Zealand companies breach no laws in importing phosphate extracted from Western Sahara, or marketing fish caught off its coast.”

In this way, the government of New Zealand basically rejects that they or their companies or the government itself have responsibilities in matters of international law in the case of Western Sahara.

Another grave example is how the EU Commission on one side claims to support the Sahrawis’ right to self-determination, while on the other enters into agreements with Morocco for natural resources plundering of Western Sahara, stating it is politically irrelevant.

“The Commission wants to avoid that a Fisheries Agreement, which is an act of economic cooperation, be manipulated in a political context. The Moroccan government has had a very explicit attitude on this”, the EU chief negotiator on the fisheries agreement said to Europapress 28 July 2006.

Interestingly, even the Moroccan government seem to disagree with the EU. Trade agreements covering Western Sahara has indeed important political dimensions:

“In a recent interview with ALM, Mohamed Laenser, Minister of Agriculture, Rural Development and Fisheries, indicated that the financial aspect was not necessarily the most important with this [EU Fisheries Partnership] agreement. The political aspect is not less important, Mr. Laenser added“.

Some governments, however, do recognise that despite the absence of UN Security Council resolutions, it might still be in violation of international law, and that the industries must stop.

“The Swedish government’s position when it comes to understanding international law in this matter is clear. The area we today call Western Sahara […] is occupied by Morocco. […] Morocco has no right to exploit the natural resources in Western Sahara for its own benefit.”

As to this day, a handful of states have come with unambiguous statements to their own companies, urging them to stay away from Western Sahara. Norway and Sweden have gone farthest. The Norwegian government has issued on their homepages a statement to Norwegian companies, urging Norwegian companies to stay away from the territory , and says that the trade might be in violation of the Convention of the Law of the Sea. Also Ireland and Denmark have come with interesting statements in this regard.

Upon its divestment from the US oil company Kerr-McGee, the Norwegian government stated that Kerr-McGee’s oil exploration in Western Sahara was “a particularly serious violation of fundamental ethical norms e.g. because it may strengthen Morocco’s sovereignty claims and thus contribute to undermining the UN peace process”.

Countries like USA or Switzerland have specified that their trade cooperation with Morocco only apply to Morocco as it is internationally recognised, not including Western Sahara. In such statements, the Sahrawis today find important political support.

Several private companies have taken notice of this development. A dozen companies in fisheries, phosphates, oil and shipping industry have withdrawn from Western Sahara after pressure from Sahrawis, the civil society and national governments.

There is a clear tendency that governments and private companies look to the practice of other governments and competing firms, in establishing policy and practice in the issue of participation of natural resources plundering in Western Sahara.

Natural resources related statements from governments defending the Sahrawi people’s right to self-determination over their own natural resources, have therefore important domino effect on other states, and has an important preventive function vis-à-vis companies that consider establishing on the land before the conflict is solved.

In this context it can be noted that some governments with a strong position in defence of the Sahrawis’ right to self-determination and independence, have still not issued public statements or advice to their own companies as to how they should relate to the natural resources exploitation in Western Sahara.

SPAIN’S LEGAL OBLIGATIONS AS ADMINISTERING POWER OF WESTERN SAHARA

Summary: Purpose. I. Antecedents. The obligations of colonizators: I.1. The debate in the foundations of the International Law; I.2. The obligations of the colonial powers according to the General Act of Berlin; I.3. The obligations of the colonial powers after the World War I. II. The obligations imposed to the Administering powers under the UN Charter. II.1. The obligations of all the UN members regarding the “non autonomous territories”. II.2. The obligations imposed upon the administering powers in the “non autonomous territories”. III. The status of Spain as administering power. III.1. Before 19th November 1975. III.2. Between 19th November 1975 and 26th February 1976. III.3. After 26th February 1976. IV. The Spain’s legal obligations as administering power: doubts and responsibilities. V. Conclusions. VI. Bibliography.


PURPOSE
The issue of the legal obligations of Spain as administering power is certainly peculiar because since 1976, Spain does not has effective power on the territory (although the maritime and aerial space present a very relevant problem). In this paper, starting from an essay of categorization of models of obligations of colonial powers vis-à-vis its colonies, we want to show the evolution of these models in the International law of the colonization until now. For this purpose, we will try to clarify what is the legal status of Western Sahara, discussing if it can be considered as the “administering power” of the territory. Taking into account the obligations now established for third countries and administering powers in the International Law we want to study what obligations are imposed on Spain and its degree of compliance.

I. ANTECEDENTS: THE OBLIGATIONS OF COLONIZATORS

I.1. The debate in the foundations of the International Law.
The foundations of modern International Law were set by Spanish scholars when reflecting on the colonisation of America (Brown Scott). It is not surprising to see arise in that very first moment the question about the lawfulness and conditions of the colonisation. Three different positions were taken into consideration.

According to the first, represented by the founder of the International Law, the professor of the University of Salamanca Francisco de Vitoria in 1539 a colonisation could be lawful provided that the colonizer should seek the good of the colonized:
“Cum illa limitatione ut fieret propter bone et utilitate eorum et non tantum ad quaestum Hispaniorum” (Vitoria, p. 119).

According to the second, presented by the professor of the University of Valladolid Bartolomé de Carranza in 1540 a colonisation is lawful, but only if it is provisory, so that in a short period of time the colonized people may recover their independence:
“Should them (the barbarians) be instructed by honest men so that they don’t return to their barbary; and when this task was accomplished after 16 or 18 years and the land be plain, because there is no risk that they return to their primitive way of life, they should be left in their original and own freedom because they don’t need more trusteeship” (Carranza, p. 43).

But, opposed to them, the professor of the University of Alcalá Melchor Cano, introduced a third point of view in 1546. Starting from the idea that “for the wisdom or policy sake no State has authority to conquest another” (Cano, p. 105), Cano dissents from Vitoria and Carranza stating that “a sovereign cannot clearly conquest by force the barbarians for their welfare sake”. Hence, Cano rejects the lawfulness of any colonization , even if under conditions:
“I reject that the wise men from Spain should rule the ignorants of the barbarian peoples. It is necessary to consider all the circumstances, because maybe it’s not convenient such a perfect policy for those stupid people” (Cano, p. 109).

I.2. The obligations of the colonial powers according to the General Act of Berlin.

I.2.A. As it is known, the European powers decided to establish a general International Law on the colonial process in the Berlin Conference. It was then possible to choose between on of the three possibilities embodied in the theories of the three quoted authors: a) definitive occupation to promote the well being of the local population with annexation of the territory; b) transitory occupation to promote the well being of the population with further granting of independence; and c) forbid of any occupation.
When choosing the content of this principle, they implemented the first position but in a more radical way than formulated by Vitoria.

Two points characterize this legal status:
a) the aim of promoting the “moral and material well-being” of the colonized people is recognized, but as a secondary aim subordinated to the profit of the metropolis; and
b) there was no provision to grant the independence to the colonized territories.

The General Act of the African Conference, signed at Berlin on February 26, 1885, was primarily intended to demonstrate the agreement of the Powers with regard to the general principles which should guide their commercial and so called civilising action in the little-known or inadequately organised regions of Africa. According to its Article VI:
“All the powers exercising sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being and to help in suppressing slavery, and especially the Slave Trade. They shall, without distinction of creed or nation, protect and favor all religious, scientific, or charitable institutions and undertakings created and organized for the above ends, or which aim at instructing the natives and bringing home to them the blessings of civilization”.

Moreover, the General Act provided in its article XXXIV a system to organize the occupation of the African continent:
“Any power which henceforth takes possession of a tract of land on the coasts of the African Continent outside of its present possessions, or which, being hitherto without such possessions, shall acquire them and assume a protectorate . . . shall accompany either act with a notification thereof, addressed to the other Signatory Powers of the present Act, in order to enable them to protest against the same if there exists any grounds for their doing so”.

I.2.B. This colonial Law was applied to the territory of “Rio de Oro” (in the Western Sahara) which was set under the Spanish rule some months before the General Act.
In November 28, 1884, the representatives of the independent Sahrawi tribe in Rio de Oro signed a Treaty of protectorate with the representative of the Kingdom of Spain where it was stipulated that:
“we have transferred to them the territory called Uadibe or Cape Blanc, in the coast, so that it may lie by the sole protection of the government of HM the King of Spain, Alphonse XII” (French version in C.I.J., Mémoires, t. II, p. 89: Spanish original version in Diego Aguirre, Historia del Sahara Español, p. 163).

In December 26 1884, a royal order to the Representatives of the King of Spain in the foreign countries confirms that Spain accepts to establish a “protectorate” on the region of Rio de Oro between cape Blanco (20º 51’ N-10º 56’ W) and cape Bojador (26º 8’ N-8º 17’ W), that is, on the centre and south of the Western Sahara (French version of this text in C.I.J., Mémoires, t. II, p. 96; Spanish original version, Diego Aguirre, Historia del Sahara Español, p. 164). This decree was enacted before the entry into force of the General Act. The Kingdom of Morocco did not express any reservation or protest before the Spanish declaration of protectorate (C.I.J., Mémoires, t. I, p. 288).

I.3. The obligations of the colonial powers after the World War I.

The World War I brought some changes on the Colonial Law. The main consequence was that the dominions of the defeated powers were submitted. Some of those dominions (the German ones) were in Africa. And then, the colonial Law related to Africa was split in two regimes.

I.3.A. As far as the colonies of the non defeated powers were concerned, the International Law applied to their colonies still was the General Act of Berlin, with the new modifications introduced in 1919. The Convention Revising the General Act of Berlin, February 26, 1885, and the General Act and Declaration of Brussels, July 2, 1890 was signed at Saint-Germain-en-Laye, September 10, 1919. The 1919 Convention does not introduce any substantive changes on the legal regime established in Berlin in 1884. It says that under the control of the new authorities “the evolution of the native populations continues to make progress”. According to the new draft of the article 11:
“The Signatory Powers exercising sovereign rights or authority in African territories will continue to watch over the preservation of the native populations and to supervise the improvement of the conditions of their moral and material well-being. They will, in particular, endeavour to secure the complete suppression of slavery in all its forms and of the slave trade by land and sea”.

I.3.B. But, as far as the territories depending from the defeated powers were concerned, a new Law was set into force, namely the Covenant of the League of Nations June 28, 1919. Its article 22 contained the new law on colonization for those territories.
The first paragraph of the Article introduce the general principles which were the same established in the General Act of Berlin 1884, i.e.,

a) the obligation to promote the “well-being” of the colonized people; and
b) the metropolis have no obligation to grant independence to those territories.
Hence no differences are in this point for the colonies ruled under the General Act of Berlin 1884 and the Covenant of the League of Nations 1919. Certainly, the Covenant spoke, for the first time, about the fact that the ancient colonies of the States who lost the war were territories “not yet able to stand by themselves”. However, no obligation was imposed to grant independence even if it comes a moment where they could be able to stand by themselves:
“To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant”.

But some important differences were introduced in the next paragraphs. Those differences were that:

a) Those colonies were not under the sovereignty of a State but under the tutelage of the League of Nations:
“The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League”;

b) The character of the mandate differed “according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances”. The degree of authority, control, or administration to be exercised by the Mandatory should, “if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council”.

c) and finally, that some obligations were imposed on the Mandatories:
“In every case of mandate, the Mandatory (should) render to the Council of the League of Nations an annual report in reference to the territory committed to its charge.(…) A permanent Commission (should) be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates”.

II. THE CHARACTER OF THE OBLIGATIONS IMPOSED UPON THE ADMINISTERING POWERS UNDER THE UN CHARTER

II.1. The obligations of all the UN members regarding the non autonomous territories.

II.1.A. The new Law of the UN be distinguished three types of colonial territories: a) “Mandates” (inherited from the League of Nations); b) “trust territories” (trusteeships newly established by the UN); and c) “non autonomous territories” (the colonies established before the UN Charter). The Western Sahara, a colony established before the approbation of the UN Charter was qualified then as “non autonomous territory”. Two stages can be distinguished on the consideration of this issue. In the first one, there is no special recognition of the obligations of the UN members regarding of the non autonomous territories, while in the second, it was developed an obligation erga omnes to respect their right of self-determination.

II.1.B. In the first stage, just after the approval of he UN Charter, no specific obligations of the member States were established regarding the non autonomous territories. Certainly, the Charter was a step beyond the former treaties on Colonial Law. But initially this change affected only the United Nations as such and not their member States. No reference is made in the article 2 of the UN Charter to an obligation for the Member States regarding the colonies if not involved in the colonization process. But the article 1.2 imposes on the United Nations as a whole the obligation “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”.

II.1.C. However, in a further stage, some new obligations arose for the UN member States. The obligations imposed on the third States to implement the respect of this right are of two kinds: political and economical.

II.1.C.a. Politically, the third States are obliged to observe, respect and promote the right of self-determination. The development of the principle of self-determination by the resolutions of the General Assembly and the case-law of the International Court of Justice has lead to impose obligations not only to the UN as such, but also to all the Member States even if not involved in a colonization. As a result, it has been declared that the “self-determination” is not only a general principle of the Law of the UN, but also a right of the peoples that from now on have a separate, own international status. This transformation of the self determination from being a principle to be a principle and a right has an important consequence, i.e., that, as a right, has a character erga omnes that necessarily implies a correspondent obligation for all the UN members to respect it.
The “Declaration on the granting of independence to colonial countries and peoples” (GA Resolution 1514 (XV)) states that “All States shall observe faithfully and strictly the provisions of the … present resolution”.
The “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations” (GA Resolution 2625 (XXV)):
“Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle”.
“the territory of a colony (…) has,, under the Charter, a status separate and distinct from the territory from the State administering it; and such separate and distinct status shall exist until the people of the colony (…) have exercised their right of self-determination in accordance with the Charter”.

This legal evolution has been confirmed by the ICJ that has stated that:
“In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable” (East Timor (Portugal v. Australia), para. 29).

II.1.C.b. Economically, the fight against colonialism developed a new obligation previously ignored. The “Programme of Action for the full implementation of the Declaration on the granting of independence to colonial countries and peoples” (GA Resolution 2621 (XXV) 1970) established the obligation to avoid any economic practice in the non autonomous territory on behalf of the colonial power as it is a major obstacle to achieve the decolonization:
“Member States shall wage a vigorous and sustained campaign against activities and practices of foreign economic, financial and other interests operating in colonial Territories and on behalf of colonial Powers and their allies, as these constitute a major obstacle to the achievement of the goals embodied in resolution 1514 (XV). Member States shall consider the adoption of necessary steps to have their nationals and companies under their jurisdiction discontinue such activities and practices; these steps should also aim at preventing the systematic influx of foreign immigrants into colonial Territories, which disrupts the integrity and social, political and cultural unity of the peoples under colonial domination”.

This obligation, imposed to all UN State members as an obligation regarding all the non autonomous territories was explicitly referred also to the Western Sahara in GA Resolution 3292 (XXIV) (1974):
“(the General Assembly) Reiterates its invitation to all States to observe the resolutions of the General Assembly regarding the activities of foreign economic and financial interests in the Territory and to abstain to contribute by their investments or immigration policy to the maintenance of a colonial situation in the Territory”

II.1.D. We may then conclude that the third States have not only an obligation to respect politically the separated, different and specific status of then “non autonomous territories”, but also to prevent any economic action blurring it or supporting the continuation of the colonial rule. This obligation exists also regarding those third States that claim to have some legal ties with the “non autonomous territory” before it was colonized by the administering power. This is self-evident if we consider that even the Administering power, which was entitled with a legitimate and valid title to occupy the territory has its title affected by the principle of self-determination.

II.2. The obligations of the administering powers.

II.2.A. As it happened with the obligations of all the member States, the regulation of the obligations of the administering powers regarding its colonies has know an evolution on several stages. On the first stage a progress was made in comparison to the earlier International Law because the obligations were not only social-economical (promotion of well-being), but also political (development of “self-government”). In the second stage, both obligations, the social-economical and the political, were deeply developed.
If we could express it, in theoretical terms, we could say that on the first stage, the UN Charter set a frame which was between the classical Francisco de Vitoria model (promotion of the well-being of the colony as condition to the annexation) and the Bartolomé de Carranza model (promotion of the well-being of the colony and obligation to grant further independence).. But in the second, it seems that it was the Melchor Cano model the one who was taken into account (granting of the independence without further delay).

II.2.B. In the first stage, the frame of the colonial Law regarding the colonial powers on the non autonomous territories was mainly contained in the article 73 of the Charter. As it has been previously said, this system means a step forward in comparison with the legal regime of the colonies established in the Covenant of the League of Nations, because together with the already existent obligations within the social or economical sphere, it added obligations within the political one.
These two obligations are expressed this way in the article 73:

a) The colonial authority must promote the social, economical and educational “well-being” of the colonized people:
“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories , and, to this end:
a. to ensure, with due respect for the culture of the peoples concerned, their (…), economic, social, and educational advancement, their just treatment, and their protection against abuses;
(…)
d. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article;
e. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.”

and

b) that colonial authority must develop the “self-government” of the territory (see also art. 76.b for the “trust territories”):
“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government (…) accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:
a. to ensure, with due respect for the culture of the peoples concerned, their political, (…) advancement, their just treatment, and their protection against abuses;
b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement”.

II.2.C. In a second stage, started in 1960, these two obligations were deeply developed: first, the political; and then the economical. The political obligations of the administering power knew a sudden and transcendental shift when the “Declaration on the granting of independence to colonial countries and peoples” (GA Resolution 1514 (XV, 1960)) was passed. On the opposite, the economical obligations had a slower reshape.

II.2.C.a. As far as the political obligations are concerned, the “Declaration on the granting of independence to colonial countries and peoples” (GA Resolution 1514 (XV, 1960) is extremely severe. After considering that the self-determination is not only a “principle” of the UN, but also a “right” of the peoples, it imposes on the administering powers the obligation to start immediately the process of independence without any conditions. However, this process must be made in accordance with the freely expressed will of the peoples:
“Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom”.

This new obligation was more extensively regulated in the GA Resolutions 1541 (XV) 2625 (XXV). These resolutions consider the possibility that the colonized people may choose freely between several options: full independence, free association with or integration in any other State.

II.2.C.d. The economic obligations were developed since the “permanent sovereignty over their natural wealth and resources”, first declared in the GA Resolution 1314 (XIII), was applied also to the non autonomous territories. The consequence was that the administering power was specially subject to respect the economic rights of the non-self governing territories to enjoy its resources. The GA Resolution 44/84 (1989) said that the General Assembly:
“Reiterates that any administering Power that deprives the colonial peoples of Non-Self-Governing Territories of the exercise of their legitimate rights over their natural resources, or subordinates the rights and interests of those peoples to foreign economic and financial interests, violates the solemn obligations it has assumed under the Charter of the United Nations;”

But the economic obligations of the administering Powers were further developed in several GA Resolutions.

Firstly, it was introduced the obligation to take effective measures to safeguard and guarantee the inalienable rights of the peoples of the Non-Self-Governing Territories to their natural resources (since GA Resolutions 48/46 -1994-).
“Urges the administering Powers concerned to take effective measures to safeguard and guarantee the inalienable rights of the peoples of the Non-Self-Governing Territories to their natural resources, and to establish and maintain control over the future development of those resources, and requests the administering Powers to take all necessary steps to protect the property rights of the peoples of those Territories;”

Then, it was established the obligation that the economic activities (GA Resolution 62/120) and specially extended to the marine activities (GA Resolution 62/113) of the administering Power should not “adversely affect the interests of the peoples”),:
“Calls upon the administering Powers to ensure that economic and other activities in the Non-Self-Governing Territories under their administration do not adversely affect the interests of the peoples but instead promote development, and to assist them in the exercise of their right to self-determination”
“Calls upon the administering Powers to ensure that the exploitation of the marine and other natural resources in the Non-Self-Governing Territories under their administration is not in violation of the relevant resolutions of the United Nations, and does not adversely affect the interests of the peoples of those Territories;

III. THE STATUS OF SPAIN AS ADMINISTERING POWER
Three different stages can be distinguished in order to know what is the status of Spain in the Western Sahara. Whereas in the first stage (until November 19, 1975) there is no doubt on its quality of “administering power”, since that moment doubts have been cast on its legal status because of the developments of the case.

III.1. Before 19th November 1975.
In 1961, just a few years after its admission to the United Nations, Spain accepted to consider the Western Sahara officially as a non self-governing territory i.e. as a colony. In 1963 Spain accepted the inclusion of the issue in the agenda of the Fourth Commission (Piniés, p. 91 ss.). Thereby it became involved in the decolonisation process in accordance with the United Nations Charter.

The United Nations subsequently recognized Spain as the administering power of the Western Sahara. The first UN General Assembly Resolution that referred to Spain as the "administering Power" (puissance administrante) of the Western Sahara was Resolution 2072 of 17 December 1965. In paragraph 2 of this resolution the General Assembly urgently requested "the Government of Spain, as the administering Power, to take immediately all necessary measures for the liberation of the Territories of Ifni and Spanish Sahara from colonial domination."

This quality of Spain as the administering Power of the Western Sahara was reiterated by several subsequent General Assembly Resolutions: Resolutions 2229 (20 December 1966), 2354 (19 December 1967), 2428 (27 December 1968), 2591 (16 December 1969), 2711 (14 December 1970), 2983 (14 December 1972) and 3162 (14 December 1973).

III.2. Between 19th November 1975 and 26th February 1976.

III.2.A. On 14 November 1975, six days before Franco’s death, Spain signed an Agreement with Morocco and Mauritania. This Agreement consisted of a "political declaration" transmitted to the United Nations and some secret annexes. The "Declaration of Principles between Spain, Morocco and Mauritania on the Western Sahara" Agreement (United Nations Treaty Series, 1975, p. 258) became commonly known as the Madrid. In this Agreement Spain agreed to constitute a tripartite (Spain-Morocco-Mauritania) interim administration to which all the responsibilities and powers of Spain as “administering power” were transferred. In the first paragraph of the Agreement, Spain confirmed "its resolve to decolonize the Territory of Western Sahara by terminating the responsibilities and powers which it possesses over that Territory as administering power." According to the second paragraph of the Agreement, Spain committed to "proceed forthwith to institute a temporary administration the Territory". Morocco and Mauritania were to participate, in collaboration with the Djemaa (assembly of Saharawi notables/sheikhs). All responsibilities and powers arising from Spain's status as administering power over the Western Sahara were transferred to these two states. It was also agreed that two Deputy Governors nominated by Morocco and Mauritania should be appointed "to assist the Governor General of the Territory in the performance of his function." Finally, paragraph 2 of the Agreement announced that the Spanish presence in Western Sahara was going to be terminated by 28 February 1976 "at the latest". The Madrid Agreement entered into force on 19 November 1975, once Spain passed the law stipulated in paragraph 6.

III.2.B. The Madrid Agreement provoked a sharp debate in the General Assembly in November 1975. As a result of this debate two resolutions were passed, both on 10 December 1975.

UN General Assembly Resolutions 3458(A) qualified Spain five times as “administering power”, twice in the Preamble and three times in the main text. This carried special relevance as this qualification was made after the Madrid Agreement was signed. In other words, in its Resolution 3458(A) the UN General Assembly ignores the Madrid Agreement and considers it as not written insofar it does not take in consideration the transfer of the status of administering power to the tripartite entity (Spain-Morocco-Mauritania).

UN General Assembly Resolution 3458(B) took note of the tripartite Agreement but did not endorse it insofar it requested the interim administration to act differently as proposed in the Madrid Agreement. Resolution 3458(B) requested the interim administration not simply to consult the Djemaa as the Madrid Agreement stated, but to consult “all the Saharan population originating in the territory” and "to take all steps to ensure that all the Saharan population in the territory will be able to exercise their inalienable right to self-determination through free consultations organized with the assistance of a representative of the United Nations appointed by the Secretary-General”(paragraph 4).

The consideration of these two resolutions leads to the conclusion that the UN General Assembly did not endorse the Madrid Agreement, and that Spain was still considered to be the administering power. UN General Assembly Resolution 3458(A) simply ignored the Madrid Agreement and Resolution 3458(B) although quoting it (only “took note” of it) ignored it because it requested a referendum that the Madrid Agreement did not contain. According to the UN Spain was still to be considered the administering power of the Western Sahara.
But there is another argument to assess that itself, one of the signatories of the Agreement, Spain, did not consider it valid.

II.2.C. On 26 February 1976, the Permanent Representative of Spain to the United Nations sent a letter to the Secretary General [1] of major relevance. The letter stated that the Spanish Government, with immediate effect and definitely terminated its presence in the Western Sahara. In this document Spain deemed it necessary to put two statements of major relevance on record:
“(a) Spain considers itself henceforth exempt from any responsibility of an international nature in connection with the administration of the said Territory, in view of the cessation of its participation in the temporary administration established for the Territory;
(b) the decolonization of the Western Sahara will be reached when the opinion of the Saharawi population was validly expressed”.

The Spanish note was not protested neither by Morocco nor Mauritania. This letter is an international act extraordinary relevant to consider this issue, because it is the evidence that Spain still was in that period the “administering power” of the Western Sahara. By this note, Spain, did not only tried to get rid unilaterally of its responsibilities and status of administering power, but also interpreted unilaterally or reconducted it to the international legality to establish that no decolonization was made of the territory through the Madrid Agreement. And if the statement (b) was made unilaterally by Spain, and not by the tripartite administration, and was not protested by Morocco and Mauritania it is because Spain explicitly, and Morocco and Mauritania implicitly, considered that the Western Sahara was not decolonized.

III.3. After 26th February 1976.

III.3.A. According to the previous ideas it is undoubtful that the Western Sahara was not decolonized through the Madrid Agreement. And this is confirmed with the fact that the issue of Western Sahara is still in the Agenda of the 4th Commission of the General Assembly. The question, then is: who is the administering power after that date?

III.3.B. Morocco has still invoked the Madrid Agreement as a title for its presence in the Western Sahara as “administering power” (as far as I know, for the last time that Morocco formally invoked the Madrid Agreement was on 2 February 2006 [2]). However a careful analysis of the Agreement reveals that this Moroccan claim is highly questionable for different reasons.

Firstly, Spain's responsibilities and powers as administering power were not transferred to Morocco in that Agreement but to a tripartite entity “in which Morocco and Mauritania will participate” alongside Spain. Consequently, it is incorrect to state that the Madrid Agreement gave Morocco any element of a status as administering power. That quality was not given by the Madrid Agreement to Morocco but to a tripartite entity composed by Spain, Morocco and Mauritania.

Secondly, the tripartite administration not only assumed the powers but also the responsibilities that corresponded with those of Spain as administering power. The most important of these responsibilities, according to international law, was the task of decolonising the territory through a self-determination referendum as demanded by UN General Assembly Resolutions. While this task was not included in the Madrid Agreement itself, General Assembly Resolution 3458(B) did mention it clearly again when referring to the Agreement. Accordingly, the Madrid Agreement failed to deliver one of the main responsibilities to be discharged of, that is the holding of a self-determination referendum. One could even argue that, since the Madrid Agreement neglects this major responsibility of the administering power, it should be regarded invalid.

Thirdly, it is also appropriate to recollect that the tripartite administration was meant to be temporary (interim). Hence, by definition it was to finish in the very moment Spain would abandon the territory, that is, before 28 February 1976. Spain even abandoned the territory two days before, on 26 February 1976. This means that after 26 February 1976 the tripartite administration came to an end since one of the parties was absent. The Madrid Agreement did not preview how the two remaining actors could assume the rights of the tripartite administration. The delegation of powers that Spain conceded to the tripartite administration did not consider sub-delegations.

Consequently, after 26 February 1976 the tripartite administration ceased to exist and since administration was not (to be) delegated, Morocco and Mauritania were no longer co-administrators of the territory. Since 26 February 1976 Morocco is neither administering power nor co-administrator.

III.3.C. The Treaty on borders between Morocco and Mauritania from April 14th 1976 (United Nations Treaty Series, 1977, p. 118-119) proceed to the partition and annexation of the Western Sahara. The annexation partition of the Western Sahara is stipulated in Article 1 while the annexation is established in the article 2 (where both parties speak about “sovereignty”). Both parties intended to do this partition and annexation:
“in conformity with the Declaration of Principles, signed in Madrid on November 14th 1975 which transferred to the interim administration participated by Morocco and Mauritania with the collaboration of the Djemaa, the responsibilities and powers which Spain had on the Sahara” (Preamble of the Treaty).

However, the basis for this partition and annexation is void. The main reason is that it is made on April 14th 1976, several months after ended (on February 26th 1976) the interim administration. This means that the Treaty was made lacking from any legal basis to justify the presence of Morocco and Mauritania in the territory after February 26th 1976.

III.3.D. The UN had clearly stated that Morocco is neither sovereign (as pretended in the Treaty from April 14th 1976) nor “administering power” neither in part, nor in the whole territory of the Western Sahara. This analysis was confirmed by the law of the United Nations. When confronted with the question of the Western Sahara after Spain had abandoned the territory, the UN General Assembly clearly qualified the presence of Morocco in the Western Sahara as “continued occupation” [UNGA Res. 34/37 (para. 5 and 6) of 21 November 1979 and 35/19 (paras. 3 and 9) of 1 November 1980.].

Furthermore, the letter dated 29 January 2002 from the UN under-Secretary-General and Legal Counsel Hans Corell to the President of the Security Council, confirmed these conclusions as follows:
“Morocco however, is not listed as the administering Power of the territory in the United Nations list of Non Self Governing Territories, and has, therefore, not transmitted information on the territory in accordance with Articles 73 (e) of the United Nations Charter” (UN Doc. S/2002/161, n. 6, section 7.)

III.3.E. After February 26th 1976 there is no UN resolution stating that Spain is “administering power” of the Western Sahara. However, this does not mean a lack of acts of the UN recognizing this status. In every report of the UN Secretary-General about the “Information from Non-Self-Governing Territories transmitted under Article 73(e) of the Charter of the United Nations” Spain was consistently referred to as the administering power of the Western Sahara (see ultimately, A 61/70 [2006] and A/62/67 [2007]).

Moreover, the UN under-Secretary-General and Legal Counsel Hans Corell, also confirmed in his opinion the quality of Spain as “administering power” of the territory:
“The Madrid Agreement did not transfer sovereignty over the territory, nor did it confer upon any of the signatories the status of an administering Power, a status which Spain alone could not have unilaterally transferred” (UN Doc. S/2002/161, section 6).

III.3.F. However, Spain still has not completely abandoned the administration of the territory. Spain still holds some administering competences on the Western Sahara on two fields: airspace and search and rescue regions.

As far as the airspace is concerned, the airspace of the Western Sahara is included in the Spanish airspace, and more precisely in the “Canary Islands Flight Information Region UA”[3] . This means that Morocco precise that Spain should grant it permission for flights in this territory. This explains why when the Moroccan air force wanted to do some military exercises in the Western Sahara (airspace over the coast between El Aaiun and Dakhla-Villa Cisneros), asked permission to the Spanish one. The press informed that between September 6th and December 31st 2004, the Spanish Air Force established some restrictions to the air traffic in this region in order to facilitate those military exercises.[4]

Regarding the maritime space, in the frame of the SOLAS convention ((International Convention for the Safety of Life at Sea), the International Convention on Maritime Search and Rescue (signed in Hamburg in April 27th 1979 and entered into force on June 22nd 1985) divides the international waters into various “search and rescue regions” (SAR regions). Certainly, the Annex of this last treaty, establishes that
“the delimitation of search and rescue regions is not related to and shall not prejudice the delimitation of any boundary between States” (Annex, paragraph 2.1.7).

According to the ocean atlas published by the International Maritime Organisation (IMO) one of the Spanish “SAR regions”, that of Canary Islands, comprehends all the coast of the Western Sahara [5]. This certainly does not include the Western Sahara inside the Spanish boundary, but it is an indice that the waters of the Western Sahara, though not being under Spanish sovereignity are not submitted to the Moroccan administration.

III.3.G. Lately, the government in Spain, since Rodriguez Zapatero was appointed as prime minister, radically changed the traditional position of the state, insofar it considers Morocco as the administering power of the Western Sahara. The Zapatero government is the first Spanish government after Franco’s death that qualified Morocco as Western Sahara's ‘administering power’. A number of high official representatives of the Spanish government have repeatedly insisted that Morocco is the territory’s administering power. In June 2005 Spanish foreign affairs minister Miguel Ángel Moratinos uttered as many as four times that the Madrid Agreement “gave Morocco its quality as administering power recognised by United Nations”. Statements to this extent were made on 22 June 2005 in the Senate, on 27 June 2005 in the Tele 5 channel program ‘La Mirada Crítica’, on 29 June 2005 in the Spanish Congress and on 7 August 2005 in the city of Asilah, Morocco. In turn, Agustín Santos, Executive Assessor for Parliamentary Matters at the Spanish Ministry of Foreign Affairs alluded to the “Moroccan authorities, as the Western Sahara administering power” (Reference of these acts in Ruiz Miguel, p. 310).
However, as far as I know, this did not mean that the airspace of the Western Sahara or the search and rescue competence in the waters of Western Sahara have been transferred to Morocco.

IV. THE SPAIN’S LEGAL OBLIGATIONS AS ADMINISTERING POWER: DOUBTS AND RESPONSIBILITIES

IV.1. The situation of the Western Sahara, then, is very close to the case of East Timor, although not exactly similar. Like in that case, the “administering power” (Spain, Portugal) lost its effective dominion at least on the territorial space of the country. When argued the case of East-Timor before the International Court of Justice [East Timor (Portugal v. Australia)], nobody contended that Portugal still was the “administering power” of the colony, although, like in the Western Sahara case, no General Assembly resolution mentioned it after 1975. But, between both cases there is a difference: the occupying power does not occupy all the territory; and people colonized founded its own State (the SADR) which controls a part of the territory and is recognized by an important number of States. This special context of the Western Sahara case raises the question about what are the obligations of Spain as administering power and the degree of compliance with them. As argued before, on the administering powers are imposed two main kinds of obligations: ones of political character (to immediately steps towards the independence of the colony) and others of social, economical and cultural character.

IV.2. Spain is firstly subject to the obligations imposed to all member States of the United Nations, among them: to observe, respect and promote the right of self-determination, and to keep the separate and distinct character of the Western Sahara to avoid any obstacle to the future self-determination. But then, it also has special obligations as administering power. According to the General Assembly Resolution 1514 (XV) Spain, has the obligation to take:
“Immediate steps (…) to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire”.
In the Western Sahara question, the problem is that part of the territory occupied and the occupying power rejects to hold a free referendum to know if the people of Western Sahara wants the independence, although its right to the independence has not only being stated by the General Assembly, but also by the International Court of Justice that did not see any obstacle to apply the Resolution 1514 (XV) to the Western Sahara.
The question is what are the obligation of Spain in this case? As it was said in the letter dated 26th February 1976:
“(b) the decolonization of the Western Sahara will be reached when the opinion of the Saharawi population was validly expressed”.
But, what could be done if the opinion of the Sahrawi population cannot be validly expressed? In my opinion, the right of self-determination of a people cannot be obstacled by the fact that the administering power cannot hold a referendum to know the freely expressed will of the whole colony.
It could be contended if, in such a case, when the part of the people not suffering occupation express its will to hold the referendum, Spain has an obligation (and not only a right) to recognize, even if provisory, the State proclaimed by the people who has a right to independence and wants to express that will. But, what is not contended is that, in such a case, the UN have a responsibility towards the people of Western Sahara. And certainly, the resolutions of the GA reaffirm it (see, lately GA Resolutions 58/109 [2003], 59/ 131 [2004], 60/114 [2005], 61/125 ][2006], 62/116 [2007]):
“(the General Assembly) Reaffirming responsibility of the United Nations towards the people of the Western Sahara”

IV.3. As it occurs with the political obligations, Spain is subject to the economic, social and educational obligations that all the members of the international community. Among these, it is important to quote:
“Member States shall wage a vigorous and sustained campaign against activities and practices of foreign economic, financial and other interests operating in colonial Territories and on behalf of colonial Powers and their allies, as these constitute a major obstacle to the achievement of the goals embodied in resolution 1514 (XV). Member States shall consider the adoption of necessary steps to have their nationals and companies under their jurisdiction discontinue such activities and practices; these steps should also aim at preventing the systematic influx of foreign immigrants into colonial Territories, which disrupts the integrity and social, political and cultural unity of the peoples under colonial domination”. (Resolution 2621 (XXV) 1970).

But, Spain as administering power is also subject to these obligations:
“Reiterates that any administering Power that deprives the colonial peoples of Non-Self-Governing Territories of the exercise of their legitimate rights over their natural resources, or subordinates the rights and interests of those peoples to foreign economic and financial interests, violates the solemn obligations it has assumed under the Charter of the United Nations;” (GA Resolution 44/84 (1989))

“Urges the administering Powers concerned to take effective measures to safeguard and guarantee the inalienable rights of the peoples of the Non-Self-Governing Territories to their natural resources, and to establish and maintain control over the future development of those resources, and requests the administering Powers to take all necessary steps to protect the property rights of the peoples of those Territories;” (GA Resolution 48/46 (1994)).

“Calls upon the administering Powers to ensure that economic and other activities in the Non-Self-Governing Territories under their administration do not adversely affect the interests of the peoples but instead promote development, and to assist them in the exercise of their right to self-determination” (GA Resolution 62/113) (2007))
“Calls upon the administering Powers to ensure that the exploitation of the marine and other natural resources in the Non-Self-Governing Territories under their administration is not in violation of the relevant resolutions of the United Nations, and does not adversely affect the interests of the peoples of those Territories;” (GA Resolution 62/113) (2007)).

If the fulfilment of the political obligations of the administering power was difficult in the context of the Western Sahara, it seems that it is not so in respect to the economical obligations. There is now an ongoing process of spoliation of the natural resources of the Western Sahara (phosphate and fisheries). We find also the establishment of economic initiatives by the occupying power in order to obtain benefits from the sand, the agriculture and the tourism. In all these activities, Spain is involved.

The maritime resources are being profited by Morocco with the complicity of Spain through the Fisheries Agreement signed by the European Union and Morocco [Council Regulation (EC) No 764/2006 of 22 May 2006 on the conclusion of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco; OJ L141 of 29/05/2006, p.1]. Spain voted in favour of such an agreement and actively lobbied in favour of it. As it has been clear now the Agreement: a) included the waters of the Western Sahara; b) those waters did not receive a separate and distinctive treatment from those of Morocco; c) the economic compensations of the EU did not benefit the local Saharawi population; and d) a huge majority of the people involved in the Agreement in the Western Sahara (mainly 95%) were not Saharawi citizens included as such in the census of the United Nations to vote in the referendum of self-determination. It is then extremely clear that this agreement is a major obstacle to the self-determination of the Western Sahara (Milano).

As far as the phosphates are concerned, all the benefits of its exploitation revenue to a firm owned by Morocco. Even if in this sector there is bigger percentage of Saharawi workers than in the Fisheries agreement, but there is not any provision which reserves only for the Sahrawis these jobs, despite the high unemployment rate of the native population. Hence the import of phosphates contributes to obstacle the self-determination. There are several foreign firms importing Sahrawi phosphates, and among them a Spanish firm (FMC Foret) which did not find any constriction to do it from the Spanish government.

The sand is also a product spoiled from the territory and mainly imported by Spain. And here also, it is not clear that the benefits revenue on the local population, taking into account the absence of information because Morocco do not comply with the obligation to inform established in the article 73.e of the UN Charter. As far as the agriculture is concerned, the problem is like in the fisheries and phosphate sectors that the labels of the products do not specify that the product is originated in a territory separated and distinct from Morocco. Finally, the occupying power is trying to build a touristic infrastructure, but also here there is no evidence at all that the benefits revenue in the local population because there is no exigency to give the jobs to the local native population officially considered by the United Nations as members of the Saharawi people. There are also Spanish firms involved in these projects (further information: Western Sahara Resources Watch, www.wsrw.org).

IV.4. The problems arisen in the process of decolonization of Western Sahara present distinctive features. Although it is clear the non-compliance of Spain of its legal obligations as “administering power” of economic character, there is a difficulty to appreciate what are the political legal obligations of Spain. This is why it should be necessary to ask the International Court of Justice for an advisory opinion. I think that the General Assembly should ask the International Court of Justice some questions which can be formulated in this way:

1. Is still Spain the administering power of the Western Sahara according to the United Nations resolutions?

2. If it is still so, does it has the responsibility to hold a referendum of self-determination?

3. If Spain cannot comply with such an obligation, shall the United Nations have the responsibilities that corresponded to Spain as administering power of the Western Sahara to hold a referendum of self-determination?


V. CONCLUSIONS

Since the foundations of the International Law three models have been formulated to determine the position of a colonial power regarding its colony: a) obligation to promote its well-being compatible with its annexation; b) obligation to promote its well-being and obligation to grant it the independence; and c) obligation to grant it the independence without further delay.
The history of the colonial Law shows how the different models have been implemented. The first model was adopted in the colonial Law derived from the General Act of Berlin 1885. This was also the model of the colonial Law in the Covenant of the League of Nations, although here for the first time reference is made to the possibility that a people could be able to stand by itself. With the foundation of the United Nations, a transformation has been produced regarding the obligations of third parties and administering powers. Nowadays, there is no doubt that there is a legal obligation to grant, as soon as possible the independence to the colonized people if this is its wish freely expressed. This political obligation is complemented with a progressively stricter obligation to avoid any economic activity which may obstacles the independence of the non autonomous territory.
The legal status of Spain in the Western Sahara has known three different stages: On the first (until November 1975) it was undoubted its quality of “Administering power” de facto and de iure; on the second (November 1975-February 1976) its legal position of Administering power was blurred by a de facto and probably illegal “tripartite administration” (Spain-Morocco-Mauritania); on the third (February 1976 until now), Spain unilaterally abandoned its position as “Administering power”, but the UN did not accept this abandon, so that it is considered a “de iure” Administering power, although still exercises some “de facto” administration also.
Even if its position is mainly a “de iure” Administering power, Spain has obligations, political and especially economic, that must be fulfilled. The developments of the case show that there have been some economic and legal issues where Spain had to take position vis-à-vis these obligations. The most well-known is the fisheries agreement between the UE and the Kingdom of Morocco affecting the waters of the Western Sahara. The evidence is that Spain is not complying its legal obligations as administering power and so it can be held responsible for the violation of its obligations contained in the International Law. The special characteristics of the case make it highly recommendable to ask the International Court of Justice for an advisory opinion about how can Spain (or other administering power being the case) fulfil its political obligations vis-à-vis the Western Sahara to facilitate the decolonization of the territory.

Notes

1. UN Doc. A/31/56 S/11997. For the printed text, see Official Records of the Security Council, Thirty-first Year, Supplement for January, February and March 1976; Published also, in the newspaper ABC (27-II-1976), p. 15-16 and in De Piniés, La Descolonización española, pp. 809-810.

2. Letter addressed on 2 February 2006 to the UN Secretary-General by Moroccan Minister of Foreign Affairs Mohamed Benaissa. The Moroccan Press Agency (MAP) and the newspaper Le Matin have reproduced several passages of this letter.
3. on AENA website

4. This information was Published in several news: Press releases from Agencia Canaria de Noticias-CAN ( 7-10-2004) , La Opinión de Tenerife (11-10-2004)

5. http://www.oceansatlas.com/unatlas/issues/emergencies/gmdss_sar/SARMAP.PDF



VI. BIBLIOGRAPHY

James Brown Scott, The Spanish Origin of International Law, The Clarendon Press, Oxford, 1934.

C.I.J., Mémoires, Sahara Occidental, vols. I & II (Exposés écrits et documents)

Melchor Cano, De dominio indiorum, 1546 (in Luciano Pereña Vicente, Misión de España en América, CSIC, Madrid, 1956, p. 90 ss.).

Bartolomé de Carranza, Ratione fidei potest Caesar debellare et tener indos novi Orbis, 1540 (in Luciano Pereña Vicente, Misión de España en América, CSIC, Madrid, 1956, p. 38 ss.).

José Ramón Diego Aguirre, Historia del Sahara Español, Kaydeda, Madrid, 1988

East Timor (Portugal v. Australia), Judgement, ICJ Reports, 1995, p. 90.

Enrico Milano, “The new Fisheries Partnership Agreement between the European Community and the kingdom of Morocco: fishing too south?” Anuario de Derecho Internacional, vol. XXII (2006), p. 413 ss.

Jaime de Piniés y Rubio, La Descolonización Española en Naciones Unidas, Centro de Estudios Políticos y Constitucionales, Madrid, 2001.

Carlos Ruiz Miguel, “The Self-determination referéndum and the role of Spain, in Karin Arts and Pedro Pinto Leite (eds.) Internacional Law and the question of Western Sahara, IPJET, Leiden, 2007, p. 3005 ss.

Francisco de Vitoria, De indis recenter inventis, 1539 (ed. Alonso Getino, Madrid, 1934).

Norwegian Oil Industry in Occupied Western Sahara

A huge Norwegian research vessel has in secret travelled to the coast of
occupied Western Sahara. This weekend the Norwegian company Fugro-Geoteam
started a controversial operation to carry out oil exploration, in
defiance of the advice of the UN and the Norwegian government.


Norwatch has discovered that the Norwegian seismic survey company
Fugro-Geoteam is now taking part in an operation in occupied Western
Sahara. The undertaking is being carried out for Moroccan authorities that
are exploring for oil offshore the coast of the occupied territory. The
company has confirmed the engagement but does not wish to release details
or comments.

Morocco does not have the right to look for oil and gas in Western Sahara,
so long as it is in the disregard of the wishes and interests of the
people of occupied Western Sahara, the Sahrawis. UN legal experts
established this in 2002.

The Norwegian government also takes a critical stance to the operation in
Western Sahara and advises companies from engaging there. In 2005 the
Norwegian Government Pension Fund expelled the American energy company
Kerr-McGee from its portfolio because of oil activity in Western Sahara
and referred to the American engagement as "a particularly serious
violation of fundamental ethical norms".

But this hasn't stopped Fugro-Geoteam from proceeding with oil exploration
in exactly the same oil block as the one in which Kerr-McGee worked.

Norwatch first received confirmation of the operation from Spanish
authorities, and when Norwatch made Fugro-Geoteam aware that a story would
be published about the engagement, they confirmed their involvement. But
they still will not comment.
The exploration started on the weekend
When the Pension-Fund- blacklisted company Kerr-McGee left Western Sahara
after strong criticism from a range of investors, its smaller partner,
Dallas-based Kosmos Energy, took over. Kosmos plans to drill in Western
Sahara in a few years, in spite of both UN statements and protests from
the government in exile. The president of Western Sahara's exiled
government has called Morocco's oil plans a violation of the truce in the
area. Several observers call the Moroccan plans a threat to security in
the region.

For a long time, therefore, it has been unclear whether little Kosmos
Energy wished to continue the exploration in the occupied territory. This
can now be confirmed by Norwatch.

It is the Norwegian seismic company Fugro-Geoteam that has become an
important pawn of the Americans. Fugro-Geoteam, a firm with 50 years'
experience in geological surveys in Norway, may carry out the last and
most important analyses before the drillings may be started next year, in
violation of international law.

Fugro is using the world's largest seismic ship, Geo Caribbean, for its
operation. Fugro built the boat last year, with a price tag of one billion
Norwegian kroner (105 million euros). The trip to Western Sahara is the
ship's maiden voyage. After the vessel was completed at Bergen Mekaniske
Verksted shipyard in November, it stopped in Rotterdam at the beginning of
December 2008, to be baptised.

On 17 December the ship left Rotterdam port, and a few days ago it arrived
at the Canary Islands. On Thursday afternoon the ship was just south of
Grand Canary Island, about to leave Spanish waters, heading south toward
Western Sahara. Fugro's chartered supply vessel was last reported on
Thursday evening, also on the way south from Grand Canary, 50 km north of
Kosmos Energy's oil block.

It is therefore likely that the exploration started this weekend and that
Geo Caribbean will end the search sometime toward the end of February.
Half of the American company's oil block is located on the continental
shelf, while the other half is in deep waters. The Fugro work is probably
to take place on the part that lies in deep waters.

Secrecy
Much indicates that Fugro-Geoteam and their partners wished to keep the
operation unknown to the public. None of the partners have wanted to
comment on the operation or to supply details about what the operation
involves.

There is no information on the web pages of either Fugro in Norway or
Fugro's parent company in the Netherlands. Nor is there any information on
the pages of Thor Offshore of Faroe Islands, which owns the small supply
vessel that will follow Geo Caribbean, or on the pages of American Kosmos
Energy, which has the oil license. Even the pages of the Moroccan
state-owned oil company ONHYM, which has awarded the license, remain
silent.

"Fugro has no right to give out information about the seismic project. For
more information about the case, the only source can be Kosmos Energy",
Hans Meyer, managing director of Fugro-Geoteam, wrote in an e-mail to
Norwatch on Saturday afternoon.

But Kosmos is not providing any answers. Norwatch was already on Friday
refused by Kosmos, which asked Norwatch to contact the above-mentioned
partners.

"If you want information about this, you must contact Fugro-Geoteam or
Moroccan authorities. As a private company, we are not obliged to answer
queries about our operations", Executive Vice President and Chief
Financial Officer in Kosmos Energy, Greg Dunlevy, told Norwatch on Friday.

He refused to answer any questions about the explorations and said that
they do not need to answer questions from the media.

Thor Offshore of the Faroe Islands confirmed to Norwatch that their supply
vessel is chartered by Fugro-Geoteam for "an operation" but would not
comment any further on the issue.

Even the crews onboard the ships seem to have been muzzled. Sergio
Ramírez, an academic at the University of Las Palmas and active in the
campaign group Western Sahara Resource Watch, met two members from the
crew on Thor Offshore's supply vessel Thor Omega in Las Palmas harbour on
Thursday. The video below was taken by Ramírez. He also produced several
photos of the vessel.

"I asked the crew about where they were going to use the vessel. No matter
how I formulated the question, they would not disclose what country they
were travelling to. Each time they answered "Africa" evasively. And when I
was going to take the picture, those who were standing in front of the
vessel ran away, so as not to be photographed," Ramírez said on the phone
to Norwatch.

Until Thursday the supply vessel from the Faroe Islands rested in the
harbour of Las Palmas.

Norwatch cannot find a single news release about the case in the Moroccan
media, which otherwise are very eager to report on the development of the
country's oil sector. Repeated enquiries to the state-owned Moroccan oil
company ONHYM have not yet resulted in an answer.

On Friday afternoon Norwatch received a confirmation from Spanish
authorities that Geo Caribbean is participating in the oil industry in
"Moroccan" waters, far south of Grand Canary. The same Spanish authorities
also confirmed that the ship Thor Omega will travel in shuttle traffic
between Fugro's seismic vessel and Las Palmas to transport crew and
supplies.

Critical international law expert
The engagement will prepare what UN legal experts define as a violation of
international law. The analysis that the UN authored in 2002 concerned the
legality of petroleum industry in the same ocean region as where
Fugro-Geoteam has now started exploration.

The person responsible for the UN legal opinion, UN's former
Under-Secretary General for Legal Affairs, the Swede Hans Corell, is
critical of the continued Moroccan policy with regard to the use of
natural resources in Western Sahara.

"In terms of the situation as it is now, no activity connected to the
natural resources of Western Sahara can take place unless representatives
for the people of Western Sahara are involved in the discussion and have
approved the activities", Hans Corell told Norwatch.

He pointed out that Morocco is not the administrative power of Western
Sahara and was clearly critical of the fact that international business
participates in the exploration and extraction of natural resources from
the region.

"Even though international law is not always directly binding for
companies, it still constitutes a foundation upon which the companies must
base their ethical evaluations. It would certainly have helped solve the
conflict in Western Sahara if the companies had behaved in a socially
responsible manner and operated in line with international law", he said
on general terms.

Fugro remains silent
Norwatch has posed a series of questions about the engagement to
Fugro-Geoteam, but they refuse to answer. Norwatch has also asked for
comments about what the Norwegian company thinks about preparing the
grounds for a violation of international law, and whether they agree with
the public statements of the Norwegian Ministry of Finance in 2005. That
was the year the Ministry sold all its Kerr-McGee shares in the Pension
Fund and said that oil exploration in Western Sahara contributes to
"undermine the UN peace process" and constitutes "a particularly serious
violation of fundamental ethical norms".

"If there should any questions about Fugro's standards, we refer to our
web pages and our annual report", Meyer wrote to Norwatch.

But on their web pages there is nothing about the engagement.

Fugro-Geoteam employs about 270 people in Norway, and the main office is
in Oslo. The company is a fully owned subsidiary of Fugro Norway, which in
turn is fully owned by the Dutch parent company Fugro NV. Geo Caribbean is
registered in the Marshall Islands.

Facts: The oil industry in Western Sahara
1975-79: Morocco occupied the major part of Western Sahara, an occupation
that was condemned by the UN.
1991: The war between Morocco and the Sahrawi independence movement
Polisario ended with a ceasefire, on the premise that a referendum be held
for the Western Sahara people in 1992. But it was never held.
2001: Morocco still occupied the major part of Western Sahara and handed
out its first two petroleum licences for offshore Western Sahara to the US
energy company Kerr-McGee and the French TotalFinaElf (later Total). The
Western Sahara government in exile called the initiative a violation of
the ceasefire agreement.
2002: The UN's legal experts said that further oil exploration in Western
Sahara would be in violation of international law. Still, the Norwegian
seismic survey company TGS-Nopec was engaged to carry out the first
seismic surveys. The surveys were to be carried out together with the
Norwegian Fugro-Geoteam and the Faroe Islands company Thor Offshore. The
Norwegian Minister of Foreign Affairs, Jan Petersen, criticised the
Norwegian involvement. After having received international criticism, all
three companies withdrew from further engagement in Western Sahara.
2004: Total withdrew from Western Sahara, saying there were insufficient
possibilities for oil or gas deposits. The smaller, privately owned oil
company Kosmos Energy moved in on the ownership side of Kerr-McGee's
Western Sahara block, called the Boujdour block.
After having sabotaged the UN's peace process for a referendum in Western
Sahara for over a decade, Morocco now refused for the first time to
arrange the referendum in Western Sahara. The international community
failed to react to the news.
2005: The Norwegian Government Pension Fund divested from Kerr-McGee
because its activities constituted "a particularly serious violation of
fundamental ethical norms" because they may contribute to "undermine the
UN peace process". Several investors followed suit.
2006: Kerr-McGee left Western Sahara, and the company was later bought up
by the US firm Anadarko. Kosmos Energy took over 75% of the Boujdour
block, while the Moroccan government oil company ONHYM kept the rest.
Kosmos Energy continued close collaboration with Anadarko. Whether the
collaboration also involved the Western Sahara surveys remains unknown.
January 2009: Kosmos Energy still owns a licence for offshore Western
Sahara, being the only foreign firm. Fugro-Geoteam initiates seismic
surveys for Kosmos Energy, with the recently built seismic survey vessel
Geo Caribbean. At the same time, they charter the supply vessel Thor Omega
of the Faroese company Thor Offshore. They did this even though both Fugro
and Thor had been criticised for assignments a few years ago, and even
though they said they would not do it again. Kosmos Energy plans to drill
for oil in a few years, something that could have as a most extreme
consequence that the ceasefire could collapse, causing the Sahrawis to
resume the war for Western Sahara's independence.

Y el expansionismo marroquí seguía ahí

La obra más breve de la literatura española, de Augusto Monterroso, reza así: "Desperté y el monstruo seguía ahí". España duerme, pero al despertar, el monstruo del expansionismo marroquí sigue ahí. Ésta es la amenaza real, de la que no se habla. Sin embargo, los mismos que silencian esta amenaza no cesan su verborrea sobre las fantasmales amenazas "yihadistas".

Llama la atención que ningún medio de ¿información? español, a pesar de los corresponsales con que cuentan en Marruecos nos haya informado del XV congreso del primer partido de Marruecos (el Istiqlal), al que pertenece el primer ministro (Abbas el Fassi). Y llama la atención porque en ese Congreso se habló de España. Para ser más exactos: de cómo quitarnos parte de nuestro territorio.

Tenemos que enterarnos por un despacho de la Agencia France Press de 11 de enero de que la ideología expansionista del "Gran Marruecos" sigue viva en el gobierno marroquí.
Traduzco algunos extractos de esta información (las cursivas son mías)

Expansionismo sobre España

Los congresistas han pedido igualmente "la apertura de un diálogo con España para poner fin a la colonización de Ceuta y de Melilla, dos enclaves españoles en el norte de Marruecos, así como de las islas vecinas del Mediterráneo. No obstante, según el comunicado el Istiqlal preconiza el refuerzo de las "relaciones de buena vecindad con España"

Expansionismo sobre Argelia

El Istiqlal afirma además que "sigue adherido al derecho de Marruecos a su Sahara Oriental", una alusión a las tierras retrocedidas a Argelia en la época del colonialismo francés en África del norte.

Expansionismo sobre el Sahara Occidental

A propósito del Sahara Occidental, el Istiqlal considera que Marruecos ha recuperado sus provincias saharianas de una manera "irreversible". "La unidad territorial de Marruecos no será objeto de ninguna negociación"

Dos enseñanzas se extraen de todo esto

1º. El expansionismo marroquí no es una cosa del pasado. Es algo actual y muy actual.

2º. El expansionismo arroquí es uno e indivisible. No es posible oponerse al expansionismo marroquí en el Sahara Occidental y apoyar sus pretensiones contra España o Argelia.

Los aliados árabes de Israel

El conflicto del Oriente Medio no es un simple conflicto entre árabes e israelíes o judíos. Por un lado, afortunadamente, hay muchos israelíes y judíos que salvan el honor de su pueblo criticando la brutal invasión de Gaza. Por otro lado, hay muchos árabes (sobre todo, gobernantes) que apoyan más o menos ocultamente la brutal invasión. Marruecos y Arabia Saudí están entre estos. Ahora hemos visto un nuevo episodio de ello.

Marruecos acaba de cerrar su embajada en Venezuela. La "argumentación" oficial, según el comunicado del Ministerio de Asuntos Exteriores marroquí es que (cursivas mías):

Esta decisión es consecuencia de la hostilidad creciente de las autoridades venezolanas respecto a la cuestión de la integrridad territorial del Reino de Marruecos y a las recientes medidas de apoyo a la pseudo RASD, tomadas por el gobierno de este país

Sin embargo esta "argumentación" no es convincente por dos razones.

1º. No se sabe qué "recientes medidas" pueden haber supuesto esa "hostilidad creciente": ¿la acreditación por Venezuela del nuevo embajador de la RASD? ¿la acreditación por la RASD del nuevo embajador de Venezuela? NO son cosas nuevas. Es algo que ya se ha hecho en el pasado. Luego no se ve que haya una "hostilidad" "creciente".

2º. Argelia apoya a la RASD mucho más que Venezuela y Marruecos, sin embargo, no cierra su embajada allí.

La realidad es otra. Pero el Majzén la oculta. La realidad es que Marruecos ha actuado de concierto con Israel para responder a la medida del gobierno venezolano de expulsar al embajador de Israel después de la brutal invasión de Gaza. Una decisión que ha causado admiración en la opinión pública árabe y una correlativa crítica a los dirigentes árabes que no toman igual medida (en Egipto o Jordania, por ejemplo).

Israel tiene una larga historia de complicidades con algunos países árabes: Arabia Saudí, Egipto o Marruecos, principalmente.

En el caso concreto de Marruecos, y sólo por aludir a un episodio reciente, conviene recordar que el cambio de postura de la Administración Bush en el asunto del Sahara Occidental, que pasó de apoyar el plan Baker a apoyar la propuesta de pseudo-autonomía para el Sahara, fue obra de de varios grupos de presión, entre los que se encuentra el lobby judío en la Casa Blanca con Elliot Abrams a la cabeza.

POST DATA (17-I-2009)
En la noche del 14 al 15 de enero la Embajada de Venezuela en París ha sufrido un atentado. Según el comunicado de la Embajada de 16 de enero

La Embajada denuncia que este ataque, acompañado de la inscripción en la fachada del eslogan "Israel vencerá", se inscribe en el contexto de la denuncia del Gobierno venezolano de las atrocidades cometidas contra el pueblo palestino, y se produce al día siguiente de la ruptura de nuestras relaciones diplomáticas con Israel.

The sacred and the profane

Jan 8th 2009 | RABAT It remains a crime to criticise the king, who still has the final say DRIVE into Morocco’s countryside and you are likely to come across neat piles of white stones stacked on hillsides, forming giant Arabic letters that spell out the country’s motto, “Allah, al-Watan, al-Malik” (God, the Nation, the King). These words are officially sacred: any challenge to what they represent is punishable by law. King Muhammad VI’s Morocco has made much progress towards freedom of speech, but his regime still enforces the three-word motto with alacrity. McDonald’s, America’s fast-food giant, recently discovered the limits of that tolerance when it was forced to apologise after distributing a map of its restaurants in Morocco without including the disputed Western Sahara as part of the kingdom. Despite calls for a boycott in the nationalist press, the chain’s swift self-abasement sufficed to quell the row, perhaps because it had already proved its commitment to national integrity by marketing a “McSahara” hamburger. But other offenders have got off less lightly. In recent years, as the result of a spate of libel suits, journalists have had to pay ever-bigger fines which, press watchdogs say, are aimed at muzzling the independent press. Rachid Niny, editor of the bestselling populist daily al-Massae, was fined 600,000 dirhams (about $70,000), only a month after a court had told him to pay a record fine of 6m dirhams in another case. Mr Niny says that the growing size of the fines is meant to shut down his newspaper. Two of Morocco’s most outspoken journalists have had to go into exile. Ali Lamrabet was banned from practising his profession, and Aboubakr Jamai fled to escape a massive fine. Other cases against leading journalists are pending; one has been charged with “prejudice to the person of the monarch”. The regime’s political opponents face similar sanctions. Nadia Yassine, daughter of the leader of Morocco’s largest Islamist group, al-Adl wa al-Ihsan (Justice and Benevolence), has had a trial for lèse-majesté pending for three years, since she claimed in a casual remark to a journalist that she was not averse to having a republic. Justice and Benevolence is an unusual Islamist movement. It combines Sufi mysticism, modern political language and the personality cult of its leader, Sheikh Abdesalem Yassine. It is also the country’s sole remaining serious political force that has not been brought into the official fold. Most other dissidents, on left and right, made their peace with the regime more than a decade ago, when King Hassan II, who died in 1999, was paving the way for his son. But followers of Justice and Benevolence refuse to take part until two of the constitution’s articles are revised: the 19th, which gives a lot of power to the king, recognising him as Commander of the Faithful, thus heir to the Prophet Muhammad and rightful leader of Morocco’s Muslims; and the 23rd, which states that “the person of the king is sacred and inviolate”. As a result, Justice and Benevolence faces steady repression. It is not certain that it will still refuse to compromise once Sheikh Yassine, now a fragile 80-year-old, has gone. But the rewards for joining mainstream politics look less tempting than before. Abdelilah Benkirane, leader of Morocco’s other big Islamist group, the Justice and Development Party, the largest opposition force in parliament, accepts that his movement’s transition from secrecy to full integration has come at a price; it is kept in check by electoral shenanigans and other means. “The public is deeply dissatisfied with political parties, which operate under severe restrictions,” he says, pointing to a record low turnout in a general election in 2007, when his party came second rather than winning handsomely, as expected. Mr Benkirane is no revolutionary. “I am deeply committed to this state, to the role of the king as holder of the balance between different parts of our national identity,” he says. “But there are only two ways to get out of this impasse. Either, against all odds, we remove the administration’s tight control of politics or we show we can make an impact by taking part in government.” But so far the regime seems bent on continuing to exclude Justice and Development from a governing coalition, which coalesced on an anti-Islamist platform. Many secular-minded politicians agree that the regime controls politics too tightly. The biggest parties are hamstrung by their deference to the old establishment and by a phenomenon that some Moroccans call “transhumance”: the way politicians connected to the palace change their affiliation according to the calculations of the day. “We were right to integrate our parties into the system after wasting too many years fighting or boycotting it,” says a former minister from a left-wing party. “But we must keep up the pressure.” Yet whereas Morocco’s monarchy has nimbly managed the transition from Hassan II to Muhammad VI and has steadied politics by opening it up to former dissidents, most political parties have not quite adapted to the new system, nor have they shown much sign of democracy within themselves. So people see little point in politics, reckoning that “all real decisions”, as they tend to put it, are still made in the palace or the interior ministry. Nice enough when he’s home As a result, the king has come under greater scrutiny by his people. He is said to be both reclusive and thin-skinned, occasionally losing his temper with his advisers. He spends a lot of time outside the country; at one point last year, the cabinet found itself constitutionally unable to enact new laws because he had been away for several months. When he comes home, he catches up on lost time by criss-crossing his country, opening new public facilities and dispensing largesse as ministers and governors trot along behind. In September a court in the southern town of Agadir sentenced a blogger, Muhammad Erraji, to two years in prison plus a fine. Mr Erraji had criticised the king’s habit of doling out gifts on his trips, arguing that it encouraged a “culture of dependency”. Though the verdict was overturned, it showed that the taboo against directly criticising the king is still fiercely upheld. Later that month another young man, Yassine Bellasal, was sentenced to a year in prison (suspended) and a fine for offending the king. Mr Bellasal’s crime was to spray a spoof graffito of the national moto—“God, the Nation, the Barça”—replacing the monarch with his favourite football club, FC Barcelona. An appeals court recently upheld the verdict, suggesting that, even in football-mad Morocco, some things are still considered more sacred than the beautiful game. ---------------------- Read text on The Economist: http://www.economist.com/world/mideast-africa/displaystory.cfm?story_id=12904679