Former Under-Secretary-General for Legal Affairs and the Legal
Counsel of the United Nations, Hans Corell, estimated in an article he
recently published in International Judicial Monitor, that the UN
Security Council should reconsider its approach to the resolution of the
conflict in Western Sahara, including by considering the recognition of
“Western Sahara as a sovereign state”.
The imminent International jurist estimate in his opinion that it is
time for the UN to reconsider its approach to the conflict, and proposed
three possible solutions, mainly: 1- to transform MINURSO into an
operation similar to the United Nations Transitional Administration in
East Timor (UNTAET); 2- to order Spain to resume her responsibility as
administering Power in Western Sahara; 3- To recognise Western Sahara as
a sovereign state.
The international jurist slammed the EU and any other entity that is
exploiting the natural resources of Western Sahara, considering it
illegal. He also criticized the Moroccan approach to the issue,
especially as reflected in the Kings speech before the latest UN General
Assembly.
Here is the full text of the article that contains many other interesting analysis of issues related to the conflict:
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The Responsibility of the UN Security Council in the Case of Western Sahara
By: Hans Corell,
Former Under-Secretary-General for Legal Affairs
and the Legal Counsel of the United Nations
At the request of the UN Security Council, I delivered a legal
opinion to the Council relating to Western Sahara on 29 January 2002.
This I did in my capacity as the Legal Counsel of the UN at the time.
The opinion concerned the legality in the context of international law
of actions by the Moroccan authorities consisting in the offering and
signing of contracts with foreign companies for the exploration of
mineral resources in Western Sahara. My conclusion was 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 applicable to
mineral resource activities in Non-Self-Governing Territories.
This development happened 13 years ago. In the meantime, I have
followed the development in Western Sahara at a distance, in particular
because of the Fisheries Partnership Agreement concluded between the
European Union (EU) and Morocco in 2007 and the protocols to that
agreement. In my view this agreement is not in conformity with
international law as far as it concerns Western Sahara.
In early December 2014, I was invited to address an international
workshop on the topic The European Union Approach Towards Western
Sahara, organised by the University of Bologna in the framework of the
Italian Presidency of the European Union. This made me take a closer
look at the situation in the region again. In particular, I focused on
the question if the United Nations Mission for the Referendum in Western
Sahara (MINURSO), the Secretary-General and his Personal Envoy,
Ambassador Christopher Ross, had made any progress towards a solution of
the situation in Western Sahara. In that context I noted the obvious
conflict between the Security Council’s latest resolution on Western
Sahara and the attitude reflected in a speech to the Nation that King
Mohammed VI of Morocco delivered on 6 November 2014. This made me
realise that the situation is very serious indeed.
In this resolution (S/RES/2152/2014 of 29 April 2014) the Security
Council “calls upon the parties to continue negotiations under the
auspices of the Secretary-General without preconditions and in good
faith – – – with a view to achieving a just, lasting, and mutually
acceptable political solution, which will provide for the
self-determination of the people of Western Sahara (my emphasis) in the
context of arrangements consistent with the principles and purposes of
the Charter of the United Nations, and noting the role and
responsibilities of the parties in this respect.”
In his speech, the King says that the Nation is “proudly celebrating
the thirty-ninth anniversary of the Green March” [Editor’s note: The
Green March was a ”strategic mass demonstration in November 1975,
coordinated by the Moroccan government, to force Spain to hand over the
disputed, autonomous semi-metropolitan Spanish Province of Sahara to
Morocco.”] The problem is that this occurrence was probably a violation
of Article 49 of the Fourth Geneva Convention, which prohibits an
occupying power from deporting or transferring parts of its own civilian
population into the territory it occupies. The following quote from the
speech should be noted in particular:
We say ‘No’ to the attempt to change the nature of this regional
conflict and to present it as a decolonization issue. Morocco is in its
Sahara and never was an occupying power or an administrative power. In
fact, it exercises its sovereignty over its territory;”
It is obvious that this speech is wholly incompatible with the
Council’s resolution. It also clearly contradicts the 1975 advisory
opinion of the International Court of Justice in the case of Western
Sahara (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12) in
which the Court found no 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.
This brings to the forefront the question how the Security Council now must deal with the situation in Western Sahara.
With respect to the natural resources of Western Sahara the Council
simply cannot allow the present situation to continue. A very serious
question in this context is the fisheries agreement between the EU and
Morocco which does not contain one word – apart from the cryptic
“sovereignty or jurisdiction” in Article 2 (a) – about the fact that
Morocco’s ‘jurisdiction’ in the waters of Western Sahara is limited by
the international rules on self-determination. Instead the agreement and
its protocols are replete with references to the “Moroccan fishing
zones”.
To be legal, an agreement of this nature would have to contain an
explicit reference to the fishing zone off the coast of Western Sahara,
defined by coordinates. The regime for issuing fishing licences within
this zone would have to be completely separate from the regime that
applies in the Moroccan fishing zone. Furthermore, the revenues
generated by the licences in the zone of Western Sahara would have to be
delivered not to Morocco’s public treasury or equivalent but to a
separate account that can be audited independently by representatives of
the people of Western Sahara so that they can ascertain that the
revenues are used solely in accordance with the needs and interests of
their people.
Against this background, the Council should examine the legality of
the EU-Morocco fisheries agreement. The appropriate way to receive an
authoritative answer to this question is for the Council to request the
International Court of Justice to give an advisory opinion on the
question in accordance with article 96 of the UN Charter. In case the
Council is unable to unite behind such action, the General Assembly
could take the initiative.
What is said about fisheries applies also to other natural resources
in Western Sahara, such as phosphates, oil or gas, or other resources,
be they renewable or non-renewable. Against this background, the
Security Council should adopt a resolution laying down clear conditions
for the exploration and exploitation of natural resources in Western
Sahara that comply with the General Assembly resolutions adopted under
the agenda item entitled “Implementation of the Declaration on the
Granting of Independence to Colonial Countries and Peoples” and other
relevant resolutions addressing activities of foreign economic and other
interests which impede the implementation of this Declaration.
The latest development with respect to natural resources is a
contract between Morocco and two companies, Kosmos and Glencore,
relating to oil exploration and exploitation in the Cap Boujdour area
off the coast of Western Sahara. I can see from the web that the two
companies maintain that this contract is in conformity with my 2002
legal opinion. Regrettably, it is not. Already signing an agreement in
which Morocco refers to Western Sahara as “the southern provinces of the
Kingdom of Morocco” is at variance with Corporate Social Responsibility
and the principles Protect, Respect and Remedy.
In his latest report on the situation concerning Western Sahara,
dated 10 April 2014, the Secretary-General observes that, in the light
of the presence of Western Sahara on the list of Non-Self-Governing
Territories since 1963, “the efforts of the United Nations, through the
work of my Personal Envoy, my Special Representative and MINURSO, will
remain highly relevant until its final status is established.” If no
progress occurs before April 2015, the Secretary-General believes that
the time will have come to engage the members of the Council in a
comprehensive review of the framework that it provided for the
negotiating process in April 2007.
The question is, therefore, how the Council should now address the
main issue, namely the question of providing for the self-determination
of the people of Western Sahara. This process has now gone on for
decades, and it is obvious that the current negotiation has become a
charade that has come to an end. How this should be done is a political
issue that the Council simply has to deal with. At the same time, any
solution must be in conformity with international law. In this process
the Council must now examine more radical options than applied in the
past, among them the following three.
One option is to transform MINURSO into an operation similar to the
United Nations Transitional Administration in East Timor (UNTAET), which
was endowed with overall responsibility for the administration of East
Timor and empowered to exercise all legislative and executive authority,
including the administration of justice.
Another option is to order Spain to resume her responsibility as
administering Power in Western Sahara, a responsibility that Spain
relinquished in February 1976. In Article 73 of the UN Charter this
responsibility, which encompasses the development of self-government, is
referred to as a “sacred trust”. Precisely because of the fact that
Spain abandoned this “sacred trust” this option, although legal, may not
be advisable. An additional dilemma in this context is that Spain is
now a member of the Council.
The problem with both these options is that they require the
organisation of a referendum in which the people of Western Sahara can
exercise its right to self-determination. This means that the
identification process which has been a constant problem over the years
will still be a major complication.
In view of the fact that the issue of Western Sahara has been on the
agenda of the United Nations for four decades, the solution may be a
third and more radical option, namely that the Security Council
recognises Western Sahara as a sovereign state. Also this option should
be acceptable from a legal point of view. It would not deprive the
people of Western Sahara from seeking a different solution to their
self-determination in the future, if they so wish.
However, from a security point of view, this option entails several
problems that must be addressed. First of all, it requires a major
effort to support capacity-building for self-government. Otherwise, the
option may result in the creation of a failed state, which will cause
serious risks, not least in view of the security situation in certain
neighbouring states in the region. A solution here might be that the
Council gives effect to its decision on a date maybe five years ahead,
while in the meantime entrusting MINURSO with a mandate similar to the
one given to UNTAET.
In making these suggestions, I must stress that I am acting in my
personal capacity only and with complete neutrality (see quote below). I
have no contacts with either side in the conflict. As I said at a
conference in Pretoria in 2008 on the legality of exploring and
exploiting natural resources in Western Sahara, hosted by the South
African Department of Foreign Affairs and the University of Pretoria, I
have no other interest in this matter than that of the rule of law, and
that the member states of the United Nations respect the norms that the
Organisation itself has established. The suggestions are based on my
experiences as a judge and legal adviser for many years in my country
(Sweden) and later as UN Legal Counsel for ten years. They simply
constitute an expression of my siding with the law to the best of my
understanding.
Those who now serve the United Nations should bear in mind the
standard set by the late UN Secretary-General Dag Hammarskjöld. In his
famous Oxford address from 1961, where he analyses the duties of an
international civil servant, he actually makes reference to the
standards that judges must apply and then continues:
If the international civil servant knows himself to be free from such
personal influences in his actions and guided solely by the common aims
and rules laid down for, and by the Organisation he serves and by
recognised legal principles, then he has done his duty, and then he can
face the criticism which, even so, will be unavoidable. As I said, at
the final last, this is a question of integrity, and if integrity in the
sense of respect for law and respect truth were to drive him into
positions of conflict with this or that interest, then that conflict is a
sign of his neutrality and not of his failure to observe neutrality –
then it is in line, not in conflict with, his duties as an international
civil servant.
The reason that I am raising the question of Western Sahara now is
that it is a situation where the Security Council risks falling short in
fulfilling its mandate. Under the UN Charter the Council has a legal
obligation to take action in situations like the present. This
obligation follows from Article 24 – the provision in which the Council
is entrusted with the primary responsibility for the maintenance of
international peace and security.
In the past, there have been serious deficiencies in this respect,
including cases where permanent members of the Council have even
violated the UN Charter. The latest example is Ukraine. This failure to
respect and defend the rule of law at the international level simply has
to come to an end. The authority of the United Nations must be upheld,
and the Council must be in the lead. It is therefore imperative that the
Council in dealing with the question of Western Sahara now acts with
authority, determination and consequence in accordance with the law.
Source: http://www.judicialmonitor.org/current/specialcommentary.html
Bir Lehlou (Liberated Zones), 20 July, 2015 (SPS) – The
Government of the Saharawi Arab Democratic Republic (SADR), on behalf
of the Saharawi people, strongly condemns the announced plans by Irish
company San Leon Energy to commence drilling the onshore Tarfaya well,
El Aaiun-4 in the occupied Territory of Western Sahara, in a letter from
President of the Saharawi Oil and Mines Authority Dr. Zbeir Ghali, to
Company Executive Chairman Mr. M. Oisin Fanning. 
