domingo, 18 de janeiro de 2009

Gaza under fire


Every war Israel has waged since 1948 has had the same objective: expulsion of the native people and theft of more land. But why are we in the west silent on this truth?


"When the truth is replaced by silence," the Soviet dissident Yevgeny Yevtushenko said, "the silence is a lie." It may appear that the silence on Gaza is broken. The small cocoons of murdered children, wrapped in green, together with boxes containing their dismembered parents, and the cries of grief and rage of everyone in that death camp by the sea can be witnessed on al-Jazeera and YouTube, even glimpsed on the BBC. But Russia's incorrigible poet was not referring to the ephemera we call news; he was asking why those who knew the why never spoke it, and so denied it. Among the Anglo-American intelligentsia, this is especially striking. It is they who hold the keys to the great storehouses of knowledge: the historiographies and archives that lead us to the why.

They know that the horror now raining on Gaza has little to do with Hamas or, absurdly, "Israel's right to exist". They know the opposite to be true: that Palestine's right to exist was cancelled 61 years ago and that the expulsion and, if necessary, extinction of the indigenous people was planned and executed by the founders of Israel. They know, for example, that the infamous "Plan D" of 1947-48 resulted in the murderous depopulation of 369 Palestinian towns and villages by the Haganah (Israeli army) and that massacre upon massacre of Palestinian civilians in such places as Deir Yassin, al-Dawayima, Eilaboun, Jish, Ramle and Lydda are referred to in official records as "ethnic cleansing". Arriving at a scene of this carnage, David Ben-Gurion, Israel's first prime minister, was asked by a general, Yigal Allon: "What shall we do with the Arabs?" Ben-Gurion, reported the Israeli historian Benny Morris, "made a dismissive, energetic gesture with his hand and said, 'Expel them'".

The order to expel an entire population "without attention to age" was signed by Yitzhak Rabin, a future prime minister promoted by the world's most efficient propaganda as a peacemaker. The terrible irony of this was addressed only in passing, such as when the Mapam party co-leader Meir Ya'ari noted "how easily" Israel's leaders spoke of how it was "possible and permissible to take women, children and old men and to fill the road with them because such is the imperative of strategy. And this we say . . . who remember who used this means against our people during the [Second World] War . . . I am appalled."

Every subsequent "war" Israel has waged has had the same objective: the expulsion of the native people and the theft of more and more land. The lie of David and Goliath, of perennial victim, reached its apogee in 1967 when the propaganda became a righteous fury that claimed the Arab states had struck first against Israel. Since then, mostly Jewish truth-tellers such as Avi Shlaim, Noam Chomsky, Tanya Reinhart, Neve Gordon, Tom Segev, Uri Avnery, Ilan Pappé and Norman Finkelstein have undermined this and other myths and revealed a state shorn of the humane traditions of Judaism, whose unrelenting militarism is the sum of an expansionist, lawless and racist ideology called Zionism. "It seems," wrote the Israeli historian Pappé on 2 January, "that even the most horrendous crimes, such as the genocide in Gaza, are treated as discrete events, unconnected to anything that happened in the past and not associated with any ideology or system . . . Very much as the apartheid ideology explained the oppressive policies of the South African government, this ideology - in its most consensual and simplistic variety - allowed all the Israeli governments in the past and the present to dehumanise the Palestinians wherever they are and strive to destroy them. The means altered from period to period, from location to location, as did the narrative covering up these atrocities. But there is a clear pattern [of genocide]."

In Gaza, the enforced starvation and denial of humanitarian aid, the piracy of life-giving resources such as fuel and water, the denial of medicines, the systematic destruction of infrastructure and killing and maiming of the civilian population, 50 per cent of whom are children, fall within the international standard of the Genocide Convention. "Is it an irresponsible overstatement," asked Richard Falk, UN special rapporteur for human rights in the occupied Palestinian territories and international law authority at Princeton University, "to associate the treatment of Palestinians with this criminalised Nazi record of collective atrocity? I think not."

In describing a “holocaust-in-the making”, Falk was alluding to the Nazis’ establishment of Jewish ghettos in Poland. For one month in 1943, the captive Polish Jews, led by Mordechaj Anielewicz, fought off the German army and the SS, but their resistance was finally crushed and the Nazis exacted their final revenge. Falk is also a Jew. Today’s holocaust-in-the-making, which began with Ben-Gurion’s Plan D, is in its final stages. The difference today is that it is a joint US-Israeli project. The F-16 jet fighters, the 250lb “smart” GBU-39 bombs supplied on the eve of the attack on Gaza, having been approved by a Congress dominated by the Democratic Party, plus the annual $2.4bn in warmaking “aid”, give Washington de facto control. It beggars belief that President-elect Obama was not informed. Outspoken about Russia’s war in Georgia and the terrorism in Mumbai, Obama has maintained a silence on Palestine that marks his approval, which is to be expected, given his obsequiousness to the Tel Aviv regime and its lobbyists during the presidential campaign and his appointment of Zionists as his secretary of state and principal Middle East advisers. When Aretha Franklin sings “Think”, her wonderful 1960s anthem to freedom, at Obama’s inauguration on 20 January, I trust someone with the brave heart of Muntader al-Zaidi, the shoe-thrower, will shout: “Gaza!”

The asymmetry of conquest and terror is clear. Plan D is now "Operation Cast Lead", which is the unfinished "Operation Justified Vengeance". This was launched by Prime Minister Ariel Sharon in 2001 when, with George W Bush's approval, he used F-16s against Palestinian towns and villages for the first time.

Why are the academics and teachers silent? Are British universities now no more than “intellectual Tescos”?

In that same year, the authoritative Jane's Foreign Report disclosed that the Blair government had given Israel the "green light" to attack the West Bank after it was shown Israel's secret designs for a bloodbath. It was typical of new Labour's enduring complicity in Palestine's agony. However, the Israeli plan, reported Jane's, needed the "trigger" of a suicide bombing which would cause "numerous deaths and injuries [because] the 'revenge' factor is crucial". This would "motivate Israeli soldiers to demolish the Palestinians". What alarmed Sharon and the author of the plan, General Shaul Mofaz, then Israeli chief of staff, was a secret agreement between Yasser Arafat and Hamas to ban suicide attacks. On 23 November 2001 Israeli agents assassinated the Hamas leader Mahmoud Abu Hanoud and got their "trigger": the suicide attacks resumed in response to his killing.

Something uncannily similar happened on 4 November last year when Israeli special forces attacked Gaza, killing six people. Once again, they got their propaganda "trigger": a ceasefire sustained by the Hamas government - which had imprisoned its violators - was shattered as a result of the Israeli attacks, and home-made rockets were fired into what used to be called Palestine before its Arab occupants were "cleansed". On 23 December, Hamas offered to renew the ceasefire, but Israel's charade was such that its all-out assault on Gaza had been planned six months earlier, according to the Israeli daily Haaretz.

Behind this sordid game is the "Dagan Plan", named after General Meir Dagan, who served with Sharon during his bloody invasion of Leba non in 1982. Now head of Mossad, the Israeli intelligence organisation, Dagan is the author of a "solution" that has brought about the imprisonment of Palestinians behind a ghetto wall snaking across the West Bank and in Gaza, now effectively a concentration camp. The establishment of a quisling government in Ramallah, under Mahmoud Abbas, is Dagan's achievement, together with a hasbara (propaganda) campaign, relayed through mostly supine, if intimidated western media, notably in the US, which say Hamas is a terrorist organisation devoted to Israel's destruction and is to "blame" for the massacres and siege of its own people over two generations, since long before its creation. "We have never had it so good," said the Israeli foreign ministry spokesman Gideon Meir in 2006. "The hasbara effort is a well-oiled machine."

In fact, Hamas's real threat is its example as the Arab world's only democratically elected government, drawing its popularity from its resistance to the Palestinians' oppressor and tormentor. This was demonstrated when Hamas foiled a CIA coup in 2007, an event ordained in the western media as "Hamas's seizure of power". Likewise, Hamas is never described as a government, let alone democratic. Neither is its proposal of a ten-year truce reported as a historic recognition of the "reality" of Israel and support for a two-state solution with just one condition: that the Israelis obey international law and end their illegal occupation beyond the 1967 borders. As every annual vote in the UN General Assembly demonstrates, most states agree. On 4 January, the president of the General Assembly, Miguel d'Escoto, described the Israeli attack on Gaza as a "monstrosity".

When the monstrosity is done and the people of Gaza are even more stricken, the Dagan Plan foresees what Sharon called a "1948-style solution" - the destruction of all Palestinian leadership and authority, followed by mass expulsions into smaller and smaller "cantonments", and perhaps, finally, into Jordan. This demolition of institutional and educational life in Gaza is designed to produce, wrote Karma Nabulsi, a Palestinian exile in Britain, "a Hobbesian vision of an anarchic society: truncated, violent, powerless, destroyed, cowed . . . Look to the Iraq of today: that is what [Sharon] had in store for us, and he has nearly achieved it."

Dr Dahlia Wasfi is an American writer on Iraq and Palestine. She has a Jewish mother and an Iraqi Muslim father. "Holocaust denial is anti-Semitic," she wrote on 31 December. "But I'm not talking about the World War II, Mahmoud Ahmadinejad [the president of Iran] or Ashkenazi Jews. What I'm referring to is the holocaust we are all witnessing and responsible for in Gaza today and in Palestine over the past 60 years . . . Since Arabs are Semites, US-Israeli policy doesn't get more anti-Semitic than this." She quoted Rachel Corrie, the young American who went to Palestine to defend Palestinians and was crushed by an Israeli bulldozer. "I am in the midst of a genocide," wrote Corrie, "which I am also indirectly supporting, and for which my government is largely responsible."

Reading the words of both, I am struck by the use of "responsibility". Breaking the lie of silence is not an esoteric abstraction, but an urgent responsibility that falls to those with the privilege of a platform. With the BBC cowed, so too is much of journalism, merely allowing vigorous debate within unmovable, invisible boundaries, ever fearful of the smear of anti-Semitism. The unreported news, meanwhile, is that the death toll in Gaza is the equivalent of 18,000 dead in Britain. Imagine, if you can.

Then there are the academics, the deans and teachers and researchers. Why are they silent as they watch a university bombed and hear the Association of University Teachers in Gaza plead for help? Are British universities now, as Terry Eagleton believes, no more than “intellectual Tescos, churning out a commodity known as graduates rather than greengroceries”?

Then there are the writers. In the dark year of 1939, the Third American Writers' Congress was held at Carnegie Hall in New York and the likes of Thomas Mann and Albert Einstein sent messages and spoke up to ensure that the lie of silence was broken. By one account, 2,500 jammed the auditorium. Today, this mighty voice of realism and morality is said to be obsolete; the literary review pages affect an ironic hauteur of irrelevance; false symbolism is all. As for the readers, their moral and political imagination is to be pacified, not primed. The anti-Muslim Martin Amis expressed this well in Visiting Mrs Nabo kov: "The dominance of the self is not a flaw, it is an evolutionary characteristic; it is just how things are."

If that is how things are, we are diminished as a civilised people. For what happens in Gaza is the defining moment of our time, which either grants war criminals impunity and immunity through our silence, while we contort our own intellect and morality, or it gives us the power to speak out. For the moment I prefer my own memory of Gaza: of the people's courage and resistance and their "luminous humanity", as Karma Nabulsi put it. On my last trip there, I was rewarded with a spectacle of Palestinian flags fluttering in unlikely places. It was dusk and children had done this. No one had told them to do it. They made flagpoles out of sticks tied together, and a few of them climbed on to a wall and held the flag between them, some silently, others crying out. They do this every day when they know foreigners are leaving, in the belief that the world will not forget them.

Holocaust denied: the lying silence of those who know


Writing in the New Statesman, John Pilger calls on 40 years of reporting the Middle East to describe the 'why' of Israel's bloody onslaught on the besieged people of Gaza - an attack that has little to do with Hamas or Israel's right to exist.

“When the truth is replaced by silence,” the Soviet dissident Yevgeny Yevtushenko said, “the silence is a lie.” It may appear the silence is broken on Gaza. The cocoons of murdered children, wrapped in green, together with boxes containing their dismembered parents and the cries of grief and rage of everyone in that death camp by the sea, can be viewed on al-Jazeera and YouTube, even glimpsed on the BBC. But Russia’s incorrigible poet was not referring to the ephemeral we call news; he was asking why those who knew the why never spoke it and so denied it. Among the Anglo-American intelligentsia, this is especially striking. It is they who hold the keys to the great storehouses of knowledge: the historiographies and archives that lead us to the why.

They know that the horror now raining on Gaza has little to do with Hamas or, absurdly, “Israel’s right to exist”. They know the opposite to be true: that Palestine’s right to exist was cancelled 61 years ago and the expulsion and, if necessary, extinction of the indigenous people was planned and executed by the founders of Israel. They know, for example, that the infamous “Plan D” resulted in the murderous de-population of 369 Palestinian towns and villages by the Haganah (Jewish army) and that massacre upon massacre of Palestinian civilians in such places as Deir Yassin, al-Dawayima, Eilaboun, Jish, Ramle and Lydda are referred to in official records as “ethnic cleansing”. Arriving at a scene of this carnage, David Ben-Gurion, Israel’s first prime minister, was asked by a general, Yigal Allon, “What shall we do with the Arabs?” Ben-Gurion, reported the Israeli historian Benny Morris, “made a dismissive, energetic gesture with his hand and said, ‘Expel them’. The order to expel an entire population “without attention to age” was signed by Yitzhak Rabin, a future prime minister promoted by the world’s most efficient propaganda as a peacemaker. The terrible irony of this was addressed only in passing, such as when the Mapan Party co-leader Meir Ya’ari noted “how easily” Israel’s leaders spoke of how it was “possible and permissible to take women, children and old men and to fill the roads with them because such is the imperative of strategy … who remembers who used this means against our people during the [Second World] war... we are appalled.”

Every subsequent “war” Israel has waged has had the same objective: the expulsion of the native people and the theft of more and more land. The lie of David and Goliath, of perennial victim, reached its apogee in 1967 when the propaganda became a righteous fury that claimed the Arab states had struck first. Since then, mostly Jewish truth-tellers such as Avi Schlaim, Noam Chomsky, the late Tanya Reinhart, Neve Gordon, Tom Segev, Uri Avnery, Ilan Pappe and Norman Finklestein have dispatched this and other myths and revealed a state shorn of the humane traditions of Judaism, whose unrelenting militarism is the sum of an expansionist, lawless and racist ideology called zionism. “It seems,” wrote the Israeli historian Ilan Pappe on 2 January, “that even the most horrendous crimes, such as the genocide in Gaza, are treated as desperate events, unconnected to anything that happened in the past and not associated with any ideology or system... Very much as the apartheid ideology explained the oppressive policies of the South African government , this ideology – in its most consensual and simplistic variety – has allowed all the Israeli governments in the past and the present to dehumanise the Palestinians wherever they are and strive to destroy them. The means altered from period to period, from location to location, as did the narrative covering up these atrocities. But there is a clear pattern [of genocide].”

In Gaza, the enforced starvation and denial of humanitarian aid, the piracy of life-giving resources such as fuel and water, the denial of medicines and treatment, the systematic destruction of infrastructure and the killing and maiming of the civilian population, 50 per cent of whom are children, meet the international standard of the Genocide Convention. “Is it an irresponsible overstatement,” asked Richard Falk, the United Nations Special Rapporteur for Human Rights in the Occupied Palestinian Territory and international law authority at Princeton University, “to associate the treatment of Palestinians with this criminalized Nazi record of collective atrocity? I think not.”

In describing a “holocaust-in-the making”, Falk was alluding to the Nazis’ establishment of Jewish ghettos in Poland. For one month in 1943, the captive Polish Jews led by Mordechaj Anielewiz fought off the German army and the SS, but their resistance was finally crushed and the Nazis exacted their final revenge. Falk is also a Jew. Today’s holocaust-in-the-making, which began with Ben-Gurion’s Plan D, is in its final stages. The difference today is that it is a joint US-Israeli project. The F-16 jet fighters, the 250-pound “smart” GBU-39 bombs supplied on the eve of the attack on Gaza, having been approved by a Congress dominated by the Democratic Party, plus the annual $2.4 billion in war-making “aid”, give Washington de facto control. It beggars belief that President-elect Obama was not informed. Outspoken on Russia’s war in Georgia and the terrorism in Mumbai, Obama’s silence on Palestine marks his approval, which is to be expected, given his obsequiousness to the Tel Aviv regime and its lobbyists during the presidential campaign and his appointment of Zionists as his secretary of state, chief of staff and principal Middle East advisers. When Aretha Franklin sings “Think”, her wonderful 1960s anthem to freedom, at Obama’s inauguration on 21 January, I trust someone with the brave heart of Muntadar al-Zaidi, the shoe-thrower, will shout: “Gaza!”

The asymmetry of conquest and terror is clear. Plan D is now “Operation Cast Lead”, which is the unfinished “Operation Justified Vengeance”. The latter was launched by Prime Minister Ariel Sharon in 2001 when, with Bush’s approval, he used F-16s against Palestinian towns and villages for the first time. In the same year, the authoritative Jane’s Foreign Report disclosed that the Blair government had given Israel the “green light” to attack the West Bank after it was shown Israel’s secret designs for a bloodbath. It was typical of New Labour Party’s enduring, cringing complicity in Palestine’s agony. However, the 2001 Israeli plan, reported Jane’s, needed the “trigger” of a suicide bombing which would cause “numerous deaths and injuries [because] the ‘revenge’ factor is crucial”. This would “motivate Israeli soldiers to demolish the Palestinians”. What alarmed Sharon and the author of the plan, General Shaul Mofaz, the Israeli Chief of Staff, was a secret agreement between Yasser Arafat and Hamas to ban suicide attacks. On 23 November, 2001, Israeli agents assassinated the Hamas leader, Mahmud Abu Hunud, and got their “trigger”; the suicide attacks resumed in response to his killing.

Something uncannily similar happened on 5 November last, when Israeli special forces attacked Gaza, killing six people. Once again, they got their propaganda “trigger”. A ceasefire initiated and sustained by the Hamas government – which had imprisoned its violators - was shattered by the Israeli attack and home-made rockets were fired into what used to be Palestine before its Arab occupants were “cleansed”. The On 23 December, Hamas offered to renew the ceasefire, but Israel’s charade was such that its all-out assault on Gaza had been planned six months earlier, according to the Israeli daily Ha’aretz.

Behind this sordid game is the “Dagan Plan”, named after General Meir Dagan, who served with Sharon in his bloody invasion of Lebanon in 1982. Now head of Mossad, the Israeli intelligence organisation, Dagan is the author of a “solution” that has seen the imprisonment of Palestinians behind a ghetto wall snaking across the West Bank and in Gaza, effectively a concentration camp. The establishment of a quisling government in Ramallah under Mohammed Abbas is Dagan’s achievement, together with a hasbara (propaganda) campaign relayed through a mostly supine, if intimidated western media, notably in America, that says Hamas is a terrorist organisation devoted to Israel’s destruction and to “blame” for the massacres and siege of its own people over two generations, long before its creation. “We have never had it so good,” said the Israeli Foreign Ministry spokesman Gideon Meir in 2006. “The hasbara effort is a well-oiled machine.” In fact, Hamas’s real threat is its example as the Arab world’s only democratically elected government, drawing its popularity from its resistance to the Palestinians’ oppressor and tormentor. This was demonstrated when Hamas foiled a CIA coup in 2007, an event ordained in the western media as “Hamas’s seizure of power”. Likewise, Hamas is never described as a government, let alone democratic. Neither is its proposal of a ten-year truce as a historic recognition of the “reality” of Israel and support for a two-state solution with just one condition: that the Israelis obey international law and end their illegal occupation beyond the 1967 borders. As every annual vote in the UN General Assembly demonstrates, 99 per cent of humanity concurs. On 4 January, the president of the General Assembly, Miguel d’Escoto, described the Israeli attack on Gaza as a “monstrosity”.

When the monstrosity is done and the people of Gaza are even more stricken, the Dagan Plan foresees what Sharon called a “1948-style solution” – the destruction of all Palestinian leadership and authority followed by mass expulsions into smaller and smaller “cantonments” and perhaps finally into Jordan. This demolition of institutional and educational life in Gaza is designed to produce, wrote Karma Nabulsi, a Palestinian exile in Britain, “a Hobbesian vision of an anarchic society: truncated, violent, powerless, destroyed, cowed... Look to the Iraq of today: that is what [Sharon] had in store for us, and he has nearly achieved it.”

Dr. Dahlia Wasfi is an American writer on Palestine. She has a Jewish mother and an Iraqi Muslim father. “Holocaust denial is anti-Semitic,” she wrote on 31 December. “But I’m not talking about World War Two, Mahmoud Ahmedinijad (the president of Iran) or Ashkenazi Jews. What I’m referring to is the holocaust we are all witnessing and responsible for in Gaza today and in Palestine over the past 60 years... Since Arabs are Semites, US-Israeli policy doesn’t get more anti-Semitic than this.” She quoted Rachel Corrie, the young American who went to Palestine to defend Palestinians and was crushed by an Israeli bulldozer. “I am in the midst of a genocide,” wrote Corrie, “which I am also indirectly supporting and for which my government is largely responsible.”

Reading the words of both, I am struck by the use of “responsibility”. Breaking the lie of silence is not an esoteric abstraction but an urgent responsibility that falls to those with the privilege of a platform. With the BBC cowed, so too is much of journalism, merely allowing vigorous debate within unmovable invisible boundaries, ever fearful of the smear of anti-Semitism. The unreported news, meanwhile, is that the death toll in Gaza is the equivalent of 18,000 dead in Britain. Imagine, if you can.

Then there are the academics, the deans and teachers and researchers. Why are they silent as they watch a university bombed and hear the Association of University Teachers in Gaza plea for help? Are British universities now, as Terry Eagleton believes, no more than “intellectual Tescos, churning out a commodity known as graduates rather than greengroceries”?

Then there are the writers. In the dark year of 1939, the Third Writers’ Congress was held at Carnegie Hall in New York and the likes of Thomas Mann and Albert Einstein sent messages and spoke up to ensure the lie of silence was broken. By one account, 3,500 jammed the auditorium and a thousand were turned away. Today, this mighty voice of realism and morality is said to be obsolete; the literary review pages affect an ironic hauteur of irrelevance; false symbolism is all. As for the readers, their moral and political imagination is to be pacified, not primed. The anti-Muslim Martin Amis expressed this well in Visiting Mrs Nabokov: “The dominance of the self is not a flaw, it is an evolutionary characteristic; it is just how things are.”

If that is how things are, we are diminished as a civilised society. For what happens in Gaza is the defining moment of our time, which either grants the impunity of war criminals the immunity of our silence, while we contort our own intellect and morality, or gives us the power to speak out. For the moment I prefer my own memory of Gaza: of the people’s courage and resistance and their “luminous humanity”, as Karma Nabulsi put it. On my last trip there, I was rewarded with a spectacle of Palestinian flags fluttering in unlikely places. It was dusk and children had done this. No one told them to do it. They made flagpoles out of sticks tied together, and a few of them climbed on to a wall and held the flag between them, some silently, others crying out. They do this every day when they know foreigners are leaving, believing the world will not forget them.

THE UNITED NATIONS AND WESTERN SAHARA


Distinguished Members of Government and of the Diplomatic Corps, Distinguished Members of the University, Friends of Western Sahara,

I am indebted to our hosts here today for sponsoring this Conference on International Law and Western Sahara, and I applaud the Republic of South Africa for its continuing support of the Sahrawi people. In particular I thank the Department of Foreign Affairs and Ambassador Van Tonder, Director for North Africa, and the University of Pretoria and Professor Michelle Olivier of the Law Faculty, for providing us, and those interested in international law, with this extraordinary forum to exchange ideas. I note to Professor Olivier that I lectured here, in the Law School, in 1971 or so on the Angela Davis case, a cause celebre at that time. I thank too all our distinguished colleagues who traveled here from all over the world and add their own luster to this program. I admire Professor El Ouali who came here from Morocco to defend the indefensible. I cannot agree with his position, but I have to acknowledge his pluck. As lawyers say in my country, when you don’t have the law, argue the facts. When you don’t have the facts, argue the law. When you have neither, it is probably not a bad idea to storm off which is what Professor El Ouali chose to do today.

While I am acknowledging people, let me add that I have had the honor over my career in government to work with two formidable authorities on the United Nations: The late Ambassador Jeane Kirkpatrick whom I knew when I was at USAID’s Sub-Saharan African Bureau, and Ambassador John Bolton with whom I worked at USAID when he was a mere lawyer. I am indebted to them both for their many insights which I reflect in these remarks today.

Eleven years ago, I shared a tent in Tindouf with Jose Ramos Horta who had just won the Nobel Prize for his courage in fighting for the independence of his people in East Timor. Until I met him, I thought that heroes were just people I read about in books. In Ramos Horta I had the pleasure of meeting one in flesh and blood.

Today is déjà vu all over again. I have the honor to be on the same program as Aminatou Haidar, a Sahrawi heroine who comes here just after being awarded the Robert F. Kennedy Human Rights Award in Washington, D.C. It was my honor to be one of her sponsors for that award.

Ms Haidar is a non-violent, peaceful demonstrator in her home, Western Sahara, for the self-determination of her people and for the release from Moroccan prisons of Sahrawi political prisoners. For her peaceful protests the Moroccan invaders of her country have, for the last 20 years, beaten her, imprisoned and held her incommunicado for months on end and ruined her health. The next time you hear the Moroccans talk about the good they are going to do for the Sahrawi people, remember what they did and are doing to the Sahrawi people. Remember this brave, frail woman whom you see here today with your own eyes and what the Moroccans have done to her.

The Moroccans have promised Aminatou more of the same if she doesn’t quit her protests. If you have seen a bootlegged copy of the 2006 U.N. Human Rights Committee’s Report on Western Sahara, I say bootlegged copy because the U.N. will not release it officially (It’s not for public consumption, you see), you know the Moroccans mean business. Freedom House and similar human rights organizations give Morocco-occupied Western Sahara and Zimbabwe the same bottom-dwelling score, just beating out Tibet, Cuba and North Korea. Will she quit? Or will she carry on, agreeing with Elie Wiesel: “There may be times when we are powerless to prevent injustice, but there must never be a time we fail to protest.” I know the answer. So do you. To paraphrase the Irish poet, William Butler Yeats: All of us here today say that our glory is that we have such a friend as you, Aminatou.

THE REFERENDUM THAT NEVER WAS

My first experience with the U.N. was like being written into a Woodie Allen script. I was hired by Sahabzada Yaqub Khan, a distinguished Pakistani statesman who was then serving as Secretary General Boutros-Ghali’s representative for Western Sahara. He reminded me of Nigel Bruce, the fine old character actor who played Dr Watson in the Sherlock Holmes films, a little stodgy and dotty at times as I suppose many men of his accomplishments are. What I remember most is Erik Jensen’s account of Yaqub Khan’s visit to Western Sahara. He asked Jensen, who was in charge of MINURSO at the time, about a large flag flying outside his office: “Why are you flying the Israeli flag?” Of course, the flag was not Israeli, but Moroccan. Both flags do have a big star in the middle, and, after all, no one’s perfect.

Erik Jensen had many stories like this and was a wonderful raconteur, a fine mimic of Boutros-Ghali among others and generally very amusing company. He was a real life version of Bertie Wooster, Wodehouse’s silly Englishman with his spats and monocle. Jensen was a gentleman but without spats and monocle and unfortunately no match for his opposite number, Mohamed Azmi, a thug and King Hassan’s enforcer in Western Sahara. Azmi was the incarnation of Graham Greene’s Captain Segura, from Our Man in Havana, charming during the daylight hours, but vicious when night fell and the Johnnie Walker Black flowed. He was a scrupulously religious fellow, however, never partying before 9 p.m. during Ramadan. The brooding omnipresence over the dramatis personae was U.N. Secretary General, Boutros Boutros-Ghali, a close friend of King Hassan and someone who should have, for that very reason, recused himself from participating in the Western Sahara issue. Boutros-Ghali’s egregious ego and blunders got him ousted as Secretary General, something unheard of in U.N. history where almost everything from embezzlement of funds to demanding sexual favors from subordinates is regarded as a peccadillo. He was also guilty of what Winston Churchill called “terminological inexactitude,” or what you and I would call tall tales. I remember reading in a Washington paper his account of his visit to Western Sahara. He said it took him 4 or 5 days to fathom the complexities of the competing Moroccan-POLISARIO positions. In fact, and I know this because I was there, he spent one day in Western Sahara, and half that time he was eating couscous with the Moroccans.

These would have been stories to dine out on if things had turned out differently. My job in MINURSO was to run that referendum on the future of Western Sahara, one of the reasons for which MINURSO was created, but these same laughable characters turned that referendum into a tragedy, an enormously expensive tragedy for the Sahrawi people.

I documented my experience with MINURSO in testimony before the U.S. Congress. I was able to do so thanks to the late Chuck Lichenstein, a former U.S. ambassador to the U.N. and deputy to Ambassador Kirkpatrick. Despite, or because of, his proximity to the United Nations, he was not a great admirer of that body. It was he who said after the Soviets, with impunity, shot down a Korean passenger plane in 1983: “If, in the judicious determination of the members of the United Nations, they feel they are not welcome and treated with the hostly consideration that is their due, the United States strongly encourages member states to consider seriously removing themselves and this organization from the soil of the United States. We will put no impediment in your way, and we will be at the dockside bidding you farewell as you set off into the sunset.” It was Chuck who felt the United Nations’ actions in Western Sahara were so outrageous, even by U.N. standards, that my story had to be told. He gave up his place on that congressional panel in order that I could do so.

My testimony was hastily put together and brief. In a nutshell, I said that the referendum had serious problems from the start. Inexplicably, Erik Jensen had decided to allow the opposing parties themselves to process applications to vote in the referendum. As a result, the Moroccans were able to and did disenfranchise vast numbers of Sahrawi voters. The same problem did not exist in the POLISARIO centers in Algeria where the only applicants were POLISARIO supporters. There was nobody to disenfranchise.

The referendum continued to slide downhill once the application process began. In Western Sahara, terrified Sahrawis asked us to keep an eye on them, but discreetly, because any overt contact with the U.N. could get them “disappeared.” I said at the time that it reminded me of this country, South Africa, during apartheid, when I could meet and talk freely with black people in the safety of the U.S. Embassy but would be ignored by those same black people when I encountered them publicly because they quite reasonably feared repercussions if seen talking to a foreign official. Oh yes. Did I forget to mention? Under Moroccan occupation, Western Sahara was and is a police state.

There were delays and more delays. On one occasion, like something out of a French farce, the referendum was delayed for two weeks, at a cost of $100,000 a day, over Morocco’s demand for an exchange of letters to discuss the interpretation of an adverb used in a referendum notice.

In addition to the delays, which were interminable, there was infiltration by the Moroccan Security Forces photographing every Sahrawi in the identification process, Moroccan taps on all international phone lines in and out of MINURSO and, in a word, Moroccan control of what was supposed to be a United Nations operation. For all his amusing skills, Erik Jensen did not have the gravitas, let us say, in place of a harsher word, to deal with a thug like Azmi. To complete the picture, at the end of my stay in MINURSO, I was making my reports to both Erik Jensen and Mohamed Azmi simultaneously. Even the veneer of an independent U.N. mission was gone by that time.

It turned out that what I thought I had been discovering on my own was common knowledge. As NY Timesman Chris Hedges reported in that newspaper, foreign diplomats in Rabat were amused at Morocco’s brazenness, but no Morocco-watchers were actually surprised. The American Embassy political officer knew what was going on in MINURSO, and another MINURSO officer, like U.N. Ambassador Albright, a Wellesley grad, personally briefed the ambassador’s staff that Morocco was turning the referendum into a sham. An intelligence official asked me on July 4th of that summer: “What accounts for that [bleeping] weakness in MINURSO that lets Morocco dominate of the referendum?” Even Human Rights watch was able to prepare a 44-page document on Morocco’s violations of Sahrawi rights because it seemed everyone knew what was going on in MINURSO.

THE UNITED NATIONS IN ACTION IN THE INTERIM, OR RATHER UNITED NATIONS’ INACTION

But first as they say on television, a word from our sponsors: A brief look at the United Nations: the history, rhetoric and the reality.

In 1693 William Penn published his “Essay toward the Present and Future Peace of Europe.” It called for the creation of a “parliament of princes,...to adjudicate territorial controversies and uphold the rule of law.” This parliament would have jurisdiction over such controversies and impose judgments, enforceable by arms, against unwilling states. This, an early version of what we would now call jus cogens, Penn reasoned, would ensure peace in Europe and restore the reputation of Christianity.

Fast forward to the League of Nation: The failure of the League of Nations, as Harold Nicolson noted, was due to the fallacy that one could apply to external affairs the institutions and practices of legislative processes in liberal democracy. “Among peace-loving peoples,…violence could or would be superseded by reason,” as defined by majority vote, one state, one vote. A fine utopian concept. It just didn’t work.

One world war after the failure of the League of Nations, former United States Secretary of State, Cordell Hull, returning from the 1943 Moscow conference where Britain, the Soviet Union and the United States had agreed to create a postwar international organization to keep the peace, announced: “There will no longer be need for spheres of influence, for alliances, for balances of power…by which, in the unhappy past, the nations strove to safeguard their security or to promote their interests.” This kind of dreaming still persists as you can see if you read the handouts from groups like the United Nations Association. Just a few years ago, Lewis Henkin of Columbia University Law School made an equally bizarre statement; “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”

There has been no shortage over the past 60 years of bloviation about what the U.N. promises, such as Bernard Baruch’s “We must elect world peace and world destruction”, and it goes on and on. Even presidents have been gullible. As Dr Johnson said, “Lapidaries are not under oath.” What the U.N. actually delivers as opposed to promises is a different story, as former U.N. diplomat Conor Cruise O”Brien’s observed: “You can safely appeal to the U.N. in the comfortable security that it will let you down.”

Dean Acheson, who was there when the United Nations was created, described the Charter as being sold to the American people as “almost Holy Writ”, raising hopes that could only lead to bitter disappointment. Former U.N. Undersecretary General Brian Urquhart described it thus: The U.N. Charter sets out “a system of maintaining international peace and security which “assumes that all governments will play the roles assigned to them. Those involved in disputes will avail themselves of the means available in the Charter to settle those disputes peacefully. If they fail to do this, the membership of the United Nations, under the guidance of the Security Council, will take a series of steps designed to persuade them to do so. The governments concerned will heed and obey the injunctions of the Council. And if in the end, the threat to peace persists, the Council, led by its permanent members, will apply enforcement measures, ranging from economic sanctions to military sanctions, to restore peace and security.”

The Charter had made these assumptions about the behavior of nations, and these same assumptions were proved wrong, almost immediately, by the actual behavior of countries involved. It was the difference between rhetoric and reality, between a letter to Santa Claus and the real world.

In Ambassador Kirkpatrick’s words, …”the Charter of the United Nations reflected our national optimism and our predilection for faith in good works. It was idealistic to the point of utopianism. …And it was doomed from the start.” The United Nations has had successes in keeping the peace, but, she added, “few could be found today who would seek to justify the United Nations solely or even mainly on grounds of a successful record of conflict resolution. “The simple reality, as General Marshall reminded Ernest Bevin in1947, is that “the transfer of a vexatious problems to the United Nations does not render them any less complicated or difficult.”

Ambassador Kirkpatrick added, “I am more bothered by far by the tendency of the United Nations to make conflict resolution more difficult than it would otherwise be, at least in a good many cases.” Someone once asked Chuck Lichenstein what would have happened if there had been a U.N. during our own Civil War. “It would probably still be going on,” he responded.

The paradox of bringing problems to the U.N. as Ambassador Kirkpatrick noted is that the number of parties involved is dramatically extended, bringing into conflicts nations who would not be otherwise involved and requiring them to choose sides, thus polarizing instead of resolving conflicts. As noted by Yeselson and Gaglione in their book on the U.N., bringing an issue to the U.N. is frequently viewed as a hostile act, given the United Nations’ reputation for partisanship and conflict exacerbation.

As he stated in his recent book, Surrender is not an Option, John Bolton had hoped, when he was United States ambassador to the U.N., to do something to resolve the Western Sahara question, the longest, most protracted conflict in the history of the United Nations, but the U.N. Peacekeeping system didn’t permit it. Morocco had agreed to a referendum but “consistently blocked taking the steps necessary to conduct it, such as voter identification and registration. That was a clear example of the limitations of UN Peacekeeping…there simply was no chance of success if any of the parties to a dispute dug in his heels and refused to cooperate. In that sense, at least, with respect to UN operations directly affecting them, almost every U.N. member has a kind of veto, not just the Security Council’s Five Permanent members. This is undoubtedly why the UN so often resembles the League of Nations in its achievements.”

Some distinguished commentators, such as Pedro Pinte Leite who is here today, and Ambassador Salka Embarek, who are extraordinarily capable of defending their positions, have criticized the former Special Representative Peter Van Walsum for stating, in so many words, that while international law was on the side of the Sahrawis, the Security Council would have to find a solution between legality and realpolitik. What was amazing about this statement was, as John Bolton pointed out, that Van Walsum “had, at last, spoken the unspeakable.” Until then, serious statesmen would not dare to admit publicly that the UN would consider compromising between “international legality” and “political reality.” Van Walsum was willing to say it: The emperor has no clothes.

The conclusion Bolton draws from Van Walsum’s blunder or candor, depending on your point of view, is sobering: Morocco will never permit a referendum, and so there is no reason for the UN to try to stage one. However, since no one will be able to figure out what to do with MINURSO, it is on its way to acquiring a “near-perpetual existence.” In such a capacity, while it could not promote a resolution to the conflict, it is capable of prolonging or complicating it. Thus, terminating MINURSO is appealing because it would either force Morocco to get serious about a referendum, or, if not, it would, at least, remove the obstacle to Morocco’s getting together with Algeria, the proctector of Sahrawi sovereignty, to deal with the problem directly. Opposing Bolton’s plan was the State Department via Eliot Abrams, hawking what we now call the autonomy plan.

CURRENT OBSTACLES TO RESOLVING THE CONFLICT: THE AUTONOMY PLAN

As George Orwell said, there is always room for one more custard pie. Even in serious discussions like these, it is important to be able to stand back and note the absurdities. It has been reported that 168 members of Congress have come out to sign a letter in support of the Moroccan autonomy plan. This has to be put into perspective, and Ian Williams of Britain’s Guardian has done just that. He points to a 1992 poll by Spy Magazine of 24 Republican Members of Congress asking them what they proposed to do about the situation in Freedonia. Freedonia, of course, doesn’t exist. It is the fictional country in the Marx Brothers’ movie Duck Soup. Nonetheless, all the members polled “waffled in a statesmanlike way about the efforts they would take to ensure stability there.” Williams concludes that 160 of the 168 signatories of the autonomy letter had never heard of Western Sahara a month before they sent the letter. “When the learned members of congress rush to sign a fact-free letter on foreign policy, you can be sure there is a lobby at work.” As someone who has spent a great deal of time in the halls of Congress, I say Amen.

More interesting, though, is that most of the 50 members of the House of Representatives African Sub-committee, that is, members who really do deal with African issues daily, signed an opposing letter demanding that the United States support Sahrawi self-determination. But, Williams points out, without Moroccan money behind it, not many heard that story.

When James Baker took over as the Secretary General’s Personal Representative for Western Sahara, Baker met with King Hassan and the POLISARIO leadership about what they wanted, and both said: “We want a free and fair referendum. We don’t want to talk about autonomy. We want to talk about a referendum.” And Baker began the series of European meetings that resulted in the Houston Accords signed by both sides.

Baker failed because even though Morocco signed and sealed its agreement to hold a referendum, (twice!) it simply refused to take the necessary steps to do so. Pace Andre Malraux, kicking over the chessboard is indeed an effective, if not a legitimate, move in chess.

The law in the Moroccan-Sahrawi dispute is clear. It just doesn’t matter:

The World Court found that Morocco’s historical ties to Western Sahara were insufficient to establish sovereignty, but Morocco has ignored that decision.

The World Court also found no legal reason why General Assembly Resolution 1514 (XV) on the decolonization of Western Sahara should not be carried out and, in particular, that the principle of self-determination, in the form of a referendum reflecting the free and genuine expression of the will of the peoples of the territory, should proceed. Morocco has not permitted these things to happen.

Morocco has twice broken its treaty obligations to hold a referendum and now quite simply says “No Way, Jose.”

Morocco illegally invaded Western Sahara in 1975 and has occupied it illegally since that date. The Economist called Morocco’s action an Anschluss. Morocco has ignored Security Council Resolutions condemning its actions and has not budged. As John Bolton has observed, Morocco has de facto control of Western Sahara. It is now trying to stretch that into de jure control through its autonomy plan, which, on the face of it, is, as Emhamed Khadad pointed out in the Wall Street Journal, completely circular reasoning. Morocco’s offering an autonomy plan, in a place it has no legal right to be, to the people of a region it is illegally occupying, is the stuff of Alice in Wonderland.

Instead of provoking cries of shame from the international community, the autonomy plan is actually receiving support. Imagine that, even though Morocco’s plan does not allow for Sahrawis to become independent, ever, a right that is theirs under law. The plan is receiving support even though it is based on the assumption that Western Sahara belongs to Morocco, something the World Court specifically said it does not. It is receiving support even though it would endorse the long discredited and disreputable concept of lebensraum, the expansion of a country’s territory by military force. In fact, as Dr. Zunes has pointed out, it would be the first time since the founding of the U.N. and the ratification of the Charter, that the international community endorsed such a concept, unthinkable to the founders of the United Nations who had just fought a war to end those very kinds of abuses.

Some of my colleagues, former United States ambassadors to Morocco, have come out with a letter endorsing Morocco’s autonomy plan. I am sure that they meant well, but their facts and reasoning generate what the Spanish call verguenza ajena, the embarrassment you feel at someone else’s blunder. For example, they characterize the POLISARIO as an “Algerian-backed rebel group” that “challenges Morocco’s historical sovereignty” over the area, “sometimes referred to as Western Sahara.” Ambassador Breica made a forceful response to these statements, to what is really propaganda. All of us here know better, and it would be tedious to repeat the obvious refutations here. The letter does show the kinds of low tactics, and let us call a spade a spade, the lies, Morocco is not above using to influence public opinion.

The POLISARIO as rebels? Really? I prefer to think this couplet characterizes the POLISARIO:

Cet animal est très méchant,
Quand on l’attaque, il se défend.

In his recent presentation to the United Nations’ 4th Committee on Decolonization, Dr Pedro Pinto Leite noted that the second decade for the Eradication of Colonization is coming to an end, but that Morocco’s colonization of Western Sahara continues unabated and with impunity. Let me suggest that if Morocco’s autonomy plan is accepted by the international community, we can forget about decolonization. The day Morocco’s autonomy plan is accepted, we will be seeing the beginning the first decade of the New Colonialism.

I said earlier that the law on the matter was clear and on the side of the Sahrawis, but it doesn’t matter. Recent developments seem to support this conclusion. Cynics always thought the law didn’t matter: “An international law for nations?” Voltaire queried. “Next they’ll be talking about a code of conduct for highway robbers and gangsters.”

PROSPECTS FOR RESOLUTION

Possible Solutions:

A direct referendum permitting Sahrawi independence as an option or a referendum permitting Sahrawi independence as part of a Morocco autonomy plan. Realistically, neither is going to happen, unless Morocco can be manipulated into taking the referendum seriously. Pope John Paul II once spoke of two possible solutions for Central Europe, one practical and one supernatural: “In one, Our Lord, the Blessed Mother and saints come down and lead the governments to righteousness. The supernatural one is that the governments agree to cooperate with each other.” What we need here is a supernatural solution.

The much-maligned Peter Van Walsum was on to something, although some want to kill the messenger. He was wrong, of course, to suggest that the Security Council decide this issue by off-setting the rights and wrongs of the situation, in a word, the law, with the political realities, but he was reflecting what many people, unfortunately many in my own State Department, are thinking. Machiavelli may have died nearly five centuries ago, but his political philosophy is alive and well, and we have to deal with it and its acolytes like Herr Van Walsum.

There is no future for the Sahrawi people in MINURSO as it now exists and no reason for them to support its continued existence.

In my judgment, John Bolton is right is supporting the elimination of MINURSO because, even if it is not eliminated, the very threat of doing so is likely to force Morocco to take the referendum seriously or face the reality of having to deal with the Sahrawis’ protector, Algeria, a win-win situation. It is, it seems to me, the best option: the one with the highest likelihood of success and the fewest risks. Replacing MINURSO offers hope of a solution, something in very short supply these days.

But, critics will say, what will replace MINURSO if it is gone. Going back to my old friend Voltaire, if you have a bear in your living room, you don’t ask what will replace it. You simply get rid of it.

Thank you.


FRANK RUDDY
U.S. Ambassador (ret.)

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).