| This intervention was presented by Dr Sidi M. Omar. Member of the POLISARIO Front Negotiating Team during the works of the “International conference on multilateralism and international law, with Western Sahara as a case study”, held in Pretoria, South Africa, 4 and 5 December 2008.
The Legal Claim of the Sahrawi People to the Right to Self-Determination and Decolonisation
The theme I am talking about today is “the Legal Claim of the Sahrawi People to the Right to Self-Determination and Decolonisation”.
On an introductory note, it is relevant to recall that 45 years after the United Nations had recognised and called for the exercise of the right of the people of Western Sahara to self-determination, the Sahrawi people have not yet been able to exercise that right. This is obviously due to the Moroccan occupation and forcible annexation of Western Sahara in 1975, which has constituted a clear denial of that right and an enduring violation of a fundamental norm of international law. It is also a reminder of a responsibility incumbent upon the United Nations and the international community as a whole to redress this injustice by ensuring a speedy completion of the decolonisation process in Western Sahara.
In this context, the paper will discuss the legal basis for the right of the people of Western Sahara to self-determination and decolonisation. More precisely, it will look into the process by which that right has been institutionalised by the United Nations and its relevant subsidiary organs. The paper will also examine how this right has been violated as a result of Morocco’s occupation and illegal annexation of Western Sahara in 1975. The United Nations successive efforts to tackle this situation will be briefly discussed with special emphasis on the current UN-led peace process in the Territory. Overall, the paper will seek to demonstrate that the question of Western Sahara is, in essence, a decolonisation issue, and hence the exercise by the Sahrawi people of their inalienable right to self-determination and independence constitutes the only legal and political basis for achieving a just, viable and lasting solution to the conflict in Western Sahara.
Before examining the issue at hand, it is perhaps useful to begin by talking very briefly about the right to self-determination in order to establish the context in which this right will be discussed in relation to the people of Western Sahara.
Self-determination and international law
It is widely acknowledged that it was with the adoption by the General Assembly of resolution 1514 (XV) on 14 December 1960, which contained the Declaration on the Granting of Independence to Colonial Countries and Peoples, that self-determination emerged as a right rather than a simple principle in the UN Charter. The political imperative of decolonisation also served as the driving force behind that shift and consolidated the right of colonial peoples to self-determination as expressed later in the international human rights covenants of the 1960s as Hurst Hannum (1990) has suggested.
Although the issue remains unsettled, self-determination has increasingly been considered a peremptory norm of international law (Soroeta Liceras 2001), of which violation is expressly characterised as a crime in accordance with General Assembly resolution 2621 (XXV) of 12 October 1970.
Resolution 1514 (XV) clearly establishes that the right to self-determination is to be exercised and implemented in accordance with the “freely expressed will and desire” of the peoples concerned (para. 5). In addition, General Assembly resolution 1541 (XV), of 15 December 1960, details the principles that determine the outcomes to which the decolonisation of a Non-Self-Governing Territory could lead.
In sum, by virtue of resolution 1514 (XV) and other legal instruments, the colonial peoples were given an inalienable right to self-determination to be exercised by the establishment of an independent state, integration or association with another state. In the later cases, the outcome should be the result of the free choice by the people of the territory concerned and expressed through informed and democratic processes.
The people of Western Sahara
In its advisory opinion on Western Sahara of 16 October 1975, which will be discussed later, the International Court of Justice referred to self-determination as a right held by “peoples”. Héctor Gros Espiell (1980) has interpreted “people” in this sense to mean “a specific type of human community sharing a common desire to establish an entity capable of functioning to ensure a common future”.
In this context, the ICJ held in the case of Western Sahara that (quote):
The information furnished to the Court shows (a) that at the time of colonisation Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organised in tribes and under chiefs competent to represent them; (b) that Spain did not proceed upon the basis that it was establishing its sovereignty over terra nullius: thus in his Order of 26 December 1884 the King of Spain proclaimed that he was taking the Rio de Oro under his protection on the basis of agreements entered into with the chiefs of local tribes (end of quotation).
It is true that the ICJ was not requested to give its opinion on the existence, or lack thereof, of a Sahrawi people at the time of Spanish colonisation. However, the significance of its conclusions, which were drawn from the many historical facts at its disposal, lies in affirming that indigenous peoples inhabited Western Sahara prior to Spanish colonisation, and that due to their subsequent subjection to alien domination they were entitled to exercise their right to self-determination. Besides, the ICJ finding also serves to refute the Moroccan and Mauritanian claims that denied the existence of a distinct socially and politically organised pre-colonial Sahrawi entity.
I understand that there will be papers presented on various historical aspects of the question of Western Sahara, and therefore I will not go into detail about the historical, social and political processes that had progressively led to the formation of the Sahrawi modern national identity. However, suffice it to say that in pre-colonial times, the Sahrawis lived as one independent community and developed their own socio-political structures that were distinctly different from those established by neighbouring peoples that inhabited northwest Africa. It was these idiosyncratic elements, and many others, that progressively constituted the distinctiveness of the Sahrawi society over the centuries.
It was then during the colonial era that an incipient Sahrawi national consciousness emerged. It was initially translated into demand for greater political participation in the affairs of the Territory, and then developed into renewed anti-colonial sentiments creating the conditions for the emergence of Sahrawi movements with a strongly nationalist direction. The emblematic moment of this historical process was the creation of the Frente POLISARIO on 10 May 1973 as an anti-colonial and liberation movement that was then recognised by the UN as the legitimate representative of the Sahrawi people. The second historic event was the proclamation of the Sahrawi Arab Democratic Republic (SADR) on 27 February 1976 as the embodiment of the collective will of the Sahrawi people to freedom and independence. The Sahrawi Republic is a founding member of the African Union and has been recognised by more than 80 countries including the Republic of South Africa.
In view of the above brief discussion of self-determination and the formative stages of the Sahrawi national identity, it can concluded that it was logical for the Untied Nations and its relevant subsidiary organs to affirm the applicability of the right of self-determination to the people of Western Sahara and set in motion a process to decolonise the Territory.
The United Nations and the decolonisation of Western Sahara
The involvement of the UN in the issue of Western Sahara dates back to 1963 when the Territory was placed on the list of Non-Self-Governing Territories under Chapter XI of the Charter. As may be recalled, the list included those territories whose peoples had not yet attained a full measure of self-government at the time. On 16 December 1965, the General Assembly adopted resolution 2072 on what was then called Spanish Sahara, in which it recalled resolution 1514 (XV) and requested Spain to take all necessary measures to liberate the “Spanish Sahara from colonial domination”. By virtue of this resolution, Spain was also recognised as the “administering power” of the Territory with the attendant obligations as set out in the article 73[e] of the UN Charter.
All resolutions adopted by the General Assembly since 1966 have a common denominator, which is the recognition of the inalienable right of the people of Western Sahara to self-determination, and the need for its implementation through a free and fair referendum on self-determination in accordance with resolution 1514 (XV). This position has ever since been reiterated every year by the General Assembly.
It is very important to underline, in this regard, that Morocco itself had in effect recognised the right of the people of Western Sahara not only to self-determination but also to independence, well before it embarked on its expansionist project leading to the invasion and illegal annexation of Western Sahara in 1975. I will cite a few documented statements made by Moroccan officials to illustrate this.
1. The Moroccan delegate to the Committee of 24, Day Ould Sidi Baba, declared on 7 June 1966 that (quote):
I ask for the independence of Western Sahara as soon as possible and this should be an authentic independence, hence we can get over the actual impasse” (end of quotation).
2. The Moroccan Minister of Foreign Affairs, Mohamed Charkhawi, declared at the 21st Session of the General Assembly, held on 13 October 1966, that (quote):
“Morocco supports a real independence for Western Sahara, putting the future of the region in the hands of its sons which in the context of liberty will decide freely on their self-determination”
(end of quotation).
3. The late King Hassan II, King of Morocco, stated during a press conference on 30 July 1970 the following (quote):
“Instead of going on claiming the territory of the Sahara, I would make the specific request that a popular consultation takes place, assuring that the first result being the departure of the non-Africans and allowing the people of the Sahara to choose between life under the Moroccan aegis, under their own aegis, or under any other aegis (end of quotation).
4. During the meeting of the Council of Ministers of the Organisation of African Unity (OAU), held in Rabat from 5 to 12 June 1972, Morocco worked actively for the adoption of resolution CM/Res. 272 (XIX), which called on Spain, the administering power of Western Sahara, to enable the people of this territory, (quote)
“to exercise their right to self-determination and independence without delay and in conformity with the Charter of the United Nations” (OP2) (end of quotation).
These are just a few examples that demonstrate, beyond any doubt, the recognition by Morocco of the right of the people of Western Sahara not only to self-determination but also to independence, well before it decided to deny them that right by invading and annexing the Territory in 1975.
Denial of self-determination: Morocco’s illegal annexation
Before examining how Morocco violated the right of the people of Western Sahara to self-determination, which it had publicly recognised and supported, it is important to say a few words about Morocco’s territorial claims to Western Sahara. There is ample evidence that Morocco’s claims to the Territory originated in the expansionist ideology of the “Greater Morocco” advanced in the late 1950s by Allal el-Fasi, the leader of the ultranationalist Istiqlal party, shortly after Morocco gained its independence from France in March 1956. This ideology, which was fully embraced by the monarchy, asserted that the then Spanish Sahara, all of Mauritania, a large part of western Algeria and even St. Louis du Sénégal and a slice of northern Mali (including Timbuktu) all belonged historically to Morocco (Villar 1982; Hodges 1983a; Pazzanita 2006).
However, in practice Morocco’s numerous claims were fraught with contradictions. For instance, by the early 1960s, Morocco had quietly dropped its claims to parts of Mali and Senegal. The claim to Mauritania was upheld throughout the 1960s, until 1969 when Morocco finally recognised the country as an independent state. As for Algeria, Morocco launched a failed military campaign to take forcefully part of the Algerian western desert in 1963 in what came to be known as the “Sand War”.
After dropping its territorial claims to the other countries, Morocco centred its attention on the then Spanish Sahara to which it began laying claims publicly. In lack of any legal basis for its claim, Morocco, who was then joined by Mauritania, requested the General Assembly to refer the issue to the International Court of Justice. By virtue of General Assembly resolution 3292 (XXIX) of 13 December 1974, the ICJ was requested, without prejudice to the application of the principles embodied in resolution 1514 (XV), to give an advisory opinion on the status of Western Sahara and any legal ties between the Territory and the two claimant countries at the time of Spanish colonisation. It is important to note that the General Assembly’s decision to ask for an advisory opinion from the ICJ was to enable it to determine the policy to be followed in order to accelerate the decolonisation process in the Territory (para. 3, 3292).
In its historic advisory opinion on Western Sahara, issued on 16 October 1975, the ICJ very clearly established that (quote):
The materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in the decolonisation of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory (end of quotation).
Morocco was hoping that its claim to the Territory would be legally endorsed by the ICJ. The advisory opinion, however, dealt a heavy blow to its plans and put the monarchical regime in a very difficult situation. It is significant to note at this point that the rule of King Hassan II of Morocco was challenged by two coup d’état in July 1971 and August 1972. Although the king survived both attempts, the mounting discontent in the country, particularly amid the Moroccan military, made it even more difficult for the monarchy, thus stepping up its search for an outlet for its domestic problems. This summarises, in some way, the real reasons behind Morocco’s move to invade and annex Western Sahara in 1975 contrary to its earlier stated position and in violation of UN resolutions and the ICJ ruling.
It is significant to underline, in this regard, that neither the United Nations nor any state in the world has recognised Morocco’s claims of sovereignty over Western Sahara and its illegal annexation of the Territory.
In its resolution 380, adopted unanimously on 6 November 1975, the Security Council “deplored” the holding of the Moroccan orchestrated “Green March” into Western Sahara, and called upon Morocco “to withdraw from the territory of Western Sahara all the participants in the march” (OP2).
In its resolutions 34/37 of 21 November 1979 and 35/19 of 11 November 1980 respectively, the General Assembly, whilst “reaffirming the inalienable right of the people of Western Sahara to self-determination and independence”, deeply “deplored the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco” (OP 5&3).
Furthermore, the former Under-Secretary-General for Legal Affairs, the Legal Counsel, Hans Corell, made it very clear, on 29 January 2002, that (quote):
“The Madrid Agreement [signed between Spain, Morocco and Mauritania on 14 November 1975] did not transfer sovereignty over the Territory, nor did it confer upon any of the signatories the status of an administering Power” (end of quotation).
It should be mentioned that Mauritania, by virtue of a peace treaty signed with the Frente POLISARIO on 5 August 1979, renounced to its territorial claims over Western Sahara.
As indicated above, the Moroccan occupation and forcible annexation of Western Sahara in 1975 has constituted a clear denial of the right of the Sahrawi people to self-determination as well as an enduring violation of a fundamental norm of international law. It is also a reminder of a responsibility incumbent upon the United Nations and the international community as a whole to redress this injustice by ensuring a speedy completion of the decolonisation process in Western Sahara.
UN peace process in Western Sahara
This was the context in which the United Nations and the Organisation of African Unity deployed their joint efforts to elaborate a peace plan aiming at enabling the people of Western Sahara to exercise their right to self-determination in line with General Assembly resolutions and the UN doctrine relating to decolonisation.
It is important to note, in this regard, that the late King Hassan II of Morocco accepted the idea of holding a self-determination referendum in the Territory during the OAU submit held in Nairobi in 1981. In October 1983, the same King Hassan II stated before the 37th Session of the General Assembly that (quote):
“Morocco wants to tell you that it wants the referendum. Morocco wants to tell you that it is ready for the referendum to be held tomorrow if that what you want. Morocco is willing to grant all the help needed to all observers wherever they come from to reach a cease-fire and hold a free, fair and just consultation. After all, Morocco is solemnly committed to and to abide by the results of the referendum” (end of quotation).
In August 1988, Morocco accepted the Settlement Plan, which was jointly elaborated by the UN and the OAU, and endorsed by the Security Council resolutions 650 (1990) and 690 (1991). As may be recalled, the fundamental objective of the plan was to organise a free and fair referendum on self-determination so as to allow the people of Western Sahara to “choose between independence and integration into Morocco” (para 31, S/21360). The UN mission for the Referendum in Western Sahara (MINURSO) was entrusted with the holding and supervision of the referendum.
In September 1997, Morocco committed itself once again to the referendum on self-determination and to the options already agreed by the two parties, namely independence and integration, when it signed the Houston Accords, negotiated by the two parties under the auspices of former US Secretary of State, James Baker III.
As a result of Houston Accords and Baker’s continued involvement, MINURSO managed to complete the identification of potential voters for the referendum by January 2000. Of the approximately 200,000 applications to participate in the referendum, most of them lodged by Morocco, MINURSO eventually concluded that only 86,386 were eligible to take part in the vote. With the voter rolls established, the next step was obviously to hold the referendum.
However, Morocco suddenly declared its unwillingness to go forward with the Settlement Plan (S/2002/178 of 19 February 2002, para.48) alleging arbitrarily that it was unimplementable. The fact remains that it was the fear of losing the referendum that was the reason behind Morocco’s reneging on its commitments under the peace plans to which it had officially agreed, despite the fact that they were endorsed by the Security Council and supported by the General Assembly.
In order to break the impasse created by Morocco, James Baker III put forward the Peace Plan for Self-determination of the People of Western Sahara (S/2003/565, annex II), or Baker Plan. Thinking that the reason for Morocco’s rejection of the Settlement Plan was its concern that the Sahrawi electorate would overwhelmingly vote in favour of independence, Baker proposed the enlargement of the electoral body in the referendum to include Moroccans residing in Western Sahara until 31 December 1999. In Baker’s own words, “this would have given voice to all Moroccans who had moved into Western Sahara during the occupation”.
In its resolution 1495 (2003) of 31 July 2003, the Security Council strongly supported the Baker Plan as “an optimum political solution” (OP1) to the conflict, and “call[ed] upon the parties to work with the United Nations and with each other towards acceptance and implementation of the Peace Plan” (OP2).
As a gesture of goodwill, the Frente POLISARIO officially accepted the plan in July 2003 despite the risks it involved. In his report (S/2003/1016) of 16 October 2003, the Secretary-General recalled that the (quote) “the acceptance of the peace plan by the Frente POLISARIO now offers a window of opportunity for solving the long-standing dispute”, and urged “Morocco to seize the opportunity and positively engage in the process by accepting and implementing the plan” (para. 27) (unquote).
To Baker’s surprise, Morocco rejected his plan under the pretext that the referendum included the option for independence. In his report (S/2004/325) of 23 April 2004, the Secretary-General pointed out that “Morocco does not accept the Settlement Plan [including the independence option] to which it had agreed for many years (para. 26). In fact, the reason for Morocco’s reneging on its commitments is the fact that it knows very well that Western Sahara is not Moroccan and that it may lose it if a referendum on self-determination was to be held even with the participation of Moroccan citizens residing in Western Sahara.
In April 2004, Morocco went as far as to declare its official rejection of any solution that would not ensure, from the outset, its annexation of Western Sahara. It was then very clear that Morocco was acting in bad faith in implementing the Settlement Plan and Houston Accords, whilst using all deceiving tactics to mislead the Security Council and the international community at large. Its rejection of Baker Plan, described unanimously as a “fair and balanced approach” and its so-called proposal of autonomy also show its lack of political will to resolve the conflict in a peaceful, just and lasting manner in line with UN resolutions and doctrine relating to decolonisation. The fact that Morocco has not yet given its approval of the new Personal Envoy for Western Sahara, Ambassador Christopher Ross, is another example of this uncooperative and rejectionist attitude.
Meanwhile Morocco continues to violate human rights of Sahrawi civilians in the occupied parts of Western Sahara as documented by many international organisations and highlighted by the Secretary-General in his latest reports on Western Sahara. In its report of 8 September 2006, the Office of the UN High Commissioner for Human Rights (OHCHR) concluded that (quote) “almost all human rights violations and concerns with regard to the people of Western Sahara stem from the non-implementation of th[e] fundamental right [of self-determination]”, recommending that “as has been stated in various UN fora, the right to self-determination for the people of Western Sahara must be ensured and implemented without further delay” (end of quotation).
Now, after showing lack of good will in the four rounds of direct negotiations held between the two parties over the last two years in line with Security Council resolution 1754 (2007), Morocco still insists on presenting its unilateral proposal of autonomy as the only “realist” way to resolve the conflict. By excluding independence as a possible solution to the conflict, the aim of this new Moroccan tactic is only to gain the renunciation by the international community of the inalienable right of the people of Western Sahara to self-determination and independence.
Besides, this approach ignores fundamental realities on the ground. Over thirty years of institution and nation-building that have made the Sahrawi nation an irreversible reality. In addition, the Sahrawi Republic (SADR) is a fully-fledged State that exercises its full sovereignty over the Sahrawi liberated territories and has the administrative and political capacity to handle its own affairs and conduct its international relations. Indeed, it is the embodiment of the strong collective will of the Sahrawi people and their vehicle to achieve their legitimate national aspirations for self-determination and independence.
Driven by sincere will to search for a mutually acceptable political solution that will provide for the right to self-determination of the people of Western Sahara, as called for by the Security Council, the Frente POLISARIO presented its proposal as a serious contribution to finding a peaceful and lasting solution to the conflict. Our proposal not only ensures the right to self-determination but also aims at establishing mutually advantageous relations with our northern neighbour and with all countries of the region.
Conclusions
In view of the discussion above, the main conclusions are as follows:
1. The legal basis for the right of the Sahrawi people to self-determination lies in the UN doctrine relating to decolonisation and the continuing status of Western Sahara as a Non-Self-Governing Territory. This means that the Sahrawi people have an inalienable right to self-determination and independence to be exercised in a free, fair and democratic manner in line with the UN resolutions in this regard. The exercise of this right constitutes therefore the only legal and political basis for achieving a just, viable and lasting solution to the conflict in Western Sahara.
2. By occupying and annexing Western Sahara in 1975, Morocco has denied the right of the Sahrawi people to self-determination and violated a fundamental norm of international law. The United Nations should assume its responsibilities to redress this injustice and ensure a speedy completion of the decolonisation process in Western Sahara.
3. For the sake of a lasting peace in the region, the United Nations in general and the Security Council in particular should therefore deploy all necessary efforts to ensure the respect for and implementation of the inalienable right of the people of Western Sahara to self-determination and independence. What is at stake is not only an inalienable right and a fundamental norm of international law but also the credibility of the United Nations as well as the security and stability of the entire Maghreb and North Africa. |
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