(This is an extract from a larger article entitled: The rights to Self-determination
and the natural resources of the Western Sahara)
Any legal analysis of the question of Western Sahara should take into account several basic and objective facts or statements that must be the key to any consistent approach to the conflict according to the International Law.
On the other hand, any approach that disregards these statements or basic facts could be clearly qualified as illegal according to the Law of the United Nations.
These 15 Facts/statements are:
- The Western Sahara is a “non-self-governing territory” and a “colonial country”.
Since
the very first moment when the General Assembly of the UN discussed the
question of Western Sahara it requested Spain, the administering power
of the territory “to take immediately all necessary measures for the
liberation” of the Territory “from colonial domination”
(A/RES/2072_1965).The most important consequence of this qualification is explained in the “Declaration of Principles of International Law concerning Friendly relations and cooperation among States in accordance with the Charter of the United Nations”: “the territory of a colony or other Non-Self-Governing Territory, has, under the Charter (of United Nations), a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its principles and purposes” (A/RES/2625_1970).
- The conflict of Western Sahara is a “question of decolonization”.
The
UN considers the Western Sahara to be a Colonial Country and, thus, the
question is under the competence of the General Assembly.The General Assembly since its first (A/RES/2072_1965) to its last (A/RES/69/101 of 2014) resolution on the question of Western Sahara reminds us that it is examined by the “Special Committee on the Situation with regard to the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples”.
The General Assembly has expressly qualified the case as a “question of decolonization” (A/RES/39-40_1984). The qualification of the case as a “decolonization” issue was not only under the Spanish rule (A/RES/2229_1966), but also when Spain decided to abandon the Territory (A/RES/3458-A_1975 & A/RES/3458-B_1975) and later when the Western Sahara was occupied by Morocco (A/RES/33-31_1978, A/RES/34-37_1979, A/RES/35-19_1980).
- The United Nations recognizes internationally the existence of the “people of Western Sahara”.
Although
the first General Assembly Resolution on Western Sahara (A/2072/1965)
just spoke about the “territory” of Western Sahara, the General Assembly
Resolutions recognized it as a “people” under Spanish rule
(A/2229/1966), but also when Spain decided to abandon the Territory
(A/RES/3458-A_1975 & A/RES/3458-B_1975) and later when the Western
Sahara was occupied by Morocco (A/RES/33-31_1978, A/RES/34-37_1979,
A/RES/35-19_1980).And until today the existence of the “people of Western Sahara” has been consistently affirmed by the General Assembly (A/RES/64/101_2010 & A/RES/65/112_2011) and the Security Council of the UN (S/RES/1920_2010).
- The “people of Western Sahara” is composed of the “indigenous people of the Territory”.
Certainly
the resolutions of the United Nations speak about the “people of
Western Sahara”. But, how should be determined who form this people? The
United Nations made it clear that the “people of Western Sahara” is
composed only by the “indigenous people of the Territory”. This has been
clearly stated by the General Assembly under Spanish rule
(A/2229/1966), but also when Spain decided to abandon the Territory
(A/RES/3458-A_1975 & A/RES/3458-B_1975).But then, one may ask who those indigenous people are. The answer with detailed names lies in the census of the “people of Western Sahara” that has been completed by the United Nations. The report of the Secretary-General dated on 17 February 2000 reveals that, contrary to some opinions, the MINURSO (United Nations Mission for the Referendum in Western Sahara) has already completed the list of the voters allowed to participate in the referendum of self-determination.
This list was communicated to the two parties of the conflict on 17 January 2000 (S/2000/131, para. 6). The referendum as the way to complete the self-determination of the people of Western Sahara is a clear and continuous requirement of the Law of the United Nations
- The “people of Western Sahara” has a “right to self-determination“.
The
“people of Western Sahara” whose existence is continuously affirmed by
the United Nations Resolutions on Western Sahara from 1966 until now,
has a “right to self-determination”.The “right to self-determination” of the “people of Western Sahara” was firstly recognized in 1966 (A/RES/2229_1966) under Spanish rule, but also when Spain decided to abandon the Territory (A/RES/3458-A_1975 & A/RES/3458-B_1975) and later when the Western Sahara was occupied by Morocco (A/RES/33-31_1978, A/RES/34-37_1979, A/RES/35-19_1980).
This recognition has been made continuously by the General Assembly until now (A/RES/64/101_2010 & A/RES/65/112_2011), as well as by the Security Council (S/RES/1871/2009 & S/RES/1920_2010).
- The “right of self-determination” of the “people of Western Sahara” is “inalienable”
- The “inalienable right of self-determination” of the “people of Western Sahara“” should be exercised by a “referendum”.
It
is clear that the “people of Western Sahara” has an “inalienable right
to self-determination” and “independence”. But, how should this right be
exerciced? The law of the United Nations is very clear: by holding a
“referendum”. The referendum as the way to complete the
self-determination of the people of Western Sahara is a clear and
continuous requirement of the Law of the United Nations, when the
Territory was under Spanish rule, but also when Spain decided to abandon
the Territory (A/RES/3458-A_1975 & A/RES/3458-B_1975) and later
when the Western Sahara was occupied by Morocco (A/RES/33-31_1978,
A/RES/34-37_1979, A/RES/35-19_1980). Still now, the Security Council
(S/RES/1871_2009 & S/RES/1920_2010) maintains a Mission in the
Territory, established in 1991, that is the “United Nations Mission for
the Referendum in Western Sahara” (MINURSO, in its Spanish acronym).This could not be in any other way, because according to the “Declaration of Principles of International Law concerning Friendly relations and cooperation among States in accordance with the Charter of the United Nations”:
“The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence of any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people” (A/RES/2625_1970)
- The referendum of self-determination should be “free, democratic and impartial”, “without any administrative or military constraints”.
Since
the very first moment when the United Nations established that the
“referendum” was the correct instrument for the exercise of the “right
to self-determination“ and the decolonization of the territory of the
Western Sahara, the UN established the requirements of this referendum.The legality of the United Nations requires that the “referendum” should be “conducted on an entirely free, democratic and impartial basis” (A/RES/2229_1966).
In order to guarantee the fairness of the decolonization process, the referendum should be conducted “without any administrative or military constraints” (A/RES/38-40_1981)
- The “people of Western Sahara” has a “right to independence” because there has never been “any tie of territorial sovereignty” between Morocco and the Western Sahara.
Since
1965, the General Assembly considered the question of Western Sahara
under the “Declaration on the granting of Independence to Colonial
Countries and Peoples” (A/RES/1514_1960).However, in order to avoid any confusion trying to say that the “independence” should be reached by the integration of the WS in another country, the bodies of the United Nations, recognized explicitly that the people of Western Sahara has a “right to self-determination and independence”.
In order to cast any doubts about the right to independence of the people of Western Sahara the General Assembly asked the International Court of Justice about “what were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity” (A/RES/3292_1974).
The answer of the International Court of Justice in its advisory opinion of 16 October 1975 was crystal clear:
“The Court’s conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory”. (ICJ Western Sahara, 1975, para. 162).
This right to independence of the Western Sahara has been reaffirmed after the major part of the Territory was occupied by Morocco (A/RES/33-31_1978, A/RES/34-37_1979, A/RES/35-19_1980).
- Spain is the “administering power” of the Western Sahara.
The
United Nations considers that, insofar a territory has not been fully
decolonized, it is under the responsibility of an “administering power”.
The article 73 of the Charter of the United Nations, and the
resolutions of the General Assembly, have established several
obligations upon the Members of the United Nations that have or assume
responsibilities for the administration of those territories whose
peoples have not yet attained a full measure of self-government.The Member-State that the United Nations considered to be the “administering power” of the Western Sahara is Spain. This was clearly established since 1965 (A/RES/2072_1965).
In November 14th 1975, Spain signed with Morocco and Mauritania, all three not democratic governments, a treaty (the so-called “Madrid Agreement”) that established an interim, tripartite, administration until 28th February 1976. The Treaty intended to proceed to the decolonization of the territory without holding a referendum of self-determination.
However, the General Assembly, clearly disavowed the Treaty in its two major elements.
On the first hand, it established very clearly that, contrary to the provisions of the Treaty, the decolonization of the Western Sahara should be done only holding a referendum where “all the Sahara populations originating in the Territory will be able to exercise their right to self-determination”, “fully and freely” (A/RES/3458-A & A/RES/3458-B_1975).
On the other hand, it still considered Spain, and only Spain, to be the “Administering power” of the Territory while refusing this status to the other two signatories of the Madrid Agreement, Morocco and Mauritania (A/RES/3458-A).
Recently in 2002, the Under-Secretary-General for Legal Affairs, the Legal Counsel of the United Nations, Hans Corell, in an opinion asked by the President of the Security Council stated that:
“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”. (S/2002(161,para. 6).
Thus, the Madrid Agreement of 1975 is clearly unauthorized, and this means that this Agreement was not consistent with the International Law.
The “people of Western Sahara” has a “right to independence” because there has never been “any tie of territorial sovereignty” between Morocco and the Western Sahara
- The presence of Morocco in the major part of Western Sahara is an “occupation”.
Morocco officially entered, for the first time in the Territory, on November 6th 1975. Far from being a “recovery” of the Territory it was a violation of an international border.This is why the Security Council (S/RES/380_1975) “deplores the holding of the March” and “calls upon Morocco immediately to withdraw from the Territory of Western Sahara”.
Despite of this, Morocco and Mauritania invaded the Territory after the illegal “Madrid Agreement” of 1975, occupying most part of it, while the Frente Polisario controlled the minor part.
Moreover, once the Madrid Agreement expired on February 26th 1976, when the government of Spain abandoned the Territory and the so-called “interim, tripartite administration”, Morocco and Mauritania increased their military presence on the part of the Territory under their control. And when Mauritania withdrew from the Western Sahara in 1979, Morocco occupied militarily most part of the southern sector of Western Sahara previously under Mauritanian occupation. Then, the General Assembly of the United Nations passed two important resolutions.
According to the first (A/RES/34-37_1979), the General Assembly qualified the situation as a “continuation” and “extension” of the “occupation” of the Territory “by Morocco”.
According to the second (A/RES/35-19_1980), the General Assembly declared that it was “deeply concerned at the aggravation of the situation deriving from the continued occupation of Western Sahara by Morocco” and “urged Morocco” “to terminate the occupation of the Territory of Western Sahara”.
The situation now is that the territory is divided by a wall (the so-called “berm”). The Western Sahara on the west of the wall is under Moroccan military “occupation”, while the Western Sahara on the east of the wall is under the control of the Frente Polisario and its State, the Sahrawi Republic. It is worth noting that the presence of the Sahrawi people east of the wall is fully lawful and has never been declared illegal.
- The Frente Polisario is the “representative of the people of Western Sahara”.
The
“Frente Polisario” was expressly considered as an actor of the conflict
for the first time in a resolution of 1978 (A/RES/33-31_1978), when the
General Assembly welcomed a “unilateral ceasefire decision taken on
July 12th 1978 by the Frente Polisario”.But in 1979, the General Assembly not just mentioned the « Frente Polisario » but, rather, considered that it was “the representative of the people of Western Sahara” (A/RES/34-37_1979). This qualification was reiterated in another resolution (A/RES/35-19_1980).
- The Frente Polisario and Morocco are the two “parties to the conflict”.
The above mentioned idea is quite clear, since one of them (the Frente Polisario) “representative of the people of Western Sahara” a people who has a right to self-determination and independence, and the other is “the Kingdom of Morocco” who is the country whose “continued occupation” hinders the exercise of the self-determination of the people of the Western Sahara.
Besides the “two parties to the conflict”, the developments of the conflict led the United Nations to speak about other parties, mainly the “neighboring countries” (S/RES/1495_2003) or “the States of the region” (A/RES/64/101_2010 & A/RES/65/112_2011).
- The people of Western Sahara has “legitimacy” to fight for the right to self-determination and independence of the Western Sahara.
In
the conflict of Western Sahara, while the United Nations have deplored
the military occupation of the Territory by one of the “two parties to
the conflict” (i.e., Morocco) and urged this country to terminate this
“occupation”, the General Assembly has recognized “the legitimacy of the
struggle” of the people of Western Sahara “to secure the enjoyment of
that right” (A/RES/34-37_1979 & A/RES/35-19_1980).This recognition is perfectly consistent with the “Declaration of Principles of International Law concerning Friendly relations and cooperation among States in accordance with the Charter of the United Nations”:
“Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence.
In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter” (A/RES/2625_1970).
- There is a “responsibility of the United Nations” in the decolonization of the Western Sahara.
The United Nations have always recognized its responsibility on the search of a solution of the conflict of Western Sahara.Since the UN established that the decolonization of the Territory should be implemented through a referendum for the self-determination of the Territory, the resolutions of the General Assembly required the administering power “to provide all necessary facilities to a United Nations mission so that it may be able to participate actively in the organization and the holding of the referendum” (A/RES/2229_1966).
This implicit recognition became explicit during the Spanish rule on the territory and in 1975 when the abandon of the Territory by its administering power aborted the referendum of self-determination for the decolonization.
When Spain still was ruling the Western Sahara, the General Assembly reaffirmed “the responsibility of the United Nations in all consultations intended to lead to the free expression of the wishes of the people” (A/RES/2983_1972 & A_RES/3162_1973). Then, the General Assembly reaffirmed “the responsibility” “of the United Nations with regard to the decolonization of the Territory” (A/RES/3458-A_1975).
Until now all resolutions reaffirm “the responsibility of the United Nations towards the people of Western Sahara,” (A/RES/69/101 of 2014).
In their actions against occupation and in pursuit of the exercise of their right to self-determination, colonized peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter
