UNIVERSITY OF NAIROBI
SCHOOL OF LAW
THE LAST COLONY IN AFRICA: WESTERN SAHARA AND THE RIGHT TO SELF- DETERMINATION
BY KARIUKI ANGELA WARUGURU (REGISTRATION NO: G34/53284/2012)
A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE AWARD OF BACHELOR OF LAWS (LL. B) DEGREE OF THE UNIVERSITY OF NAIROBI
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LIST OF ACRONYMS
ICG International Crisis Group ICJ International Court of Justice MINUSRO United Nations Mission For The Referendum In Western Sahara SADR Sahrawi Democratic Republic UN United Nations UNSC United Nations Security Council UNGA United Nations General Assembly US United States
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LIST OF CONVENTIONS AND TREATIES
1. United Nations Charter, 26 June 1945, San Francisco, UKTS 67 (1946), Cmd. 7015; 1 UNTS xvi. 2. United Nations Resolution on the Declaration on the Granting of Independence to Colonial Territories and Peoples, 1514 (XV), 14 December 1960, UN Doc. A/4684(1960). 3. United Nations Resolution on the Programme of action for the full implementation of the Declaration on the granting of Independence to colonial countries and people, 2621 (XXV), 12 October 1970, UN Doc. (2621 A/8086). 4. United Nations General Assembly Resolution on the Question of Spanish Sahara 3458A 10 December 1975, UN Doc. (A/5438). 5. United Nations Resolution on the Question of Ifni and Spanish Sahara, 2229 (XXI), 20 December 1966, UN Doc. A/Res/21/2229(1966). 6. United Nations Resolution on the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, 2625 (XXV), 24 October 1970, UN Doc. A/RES/25/2625(1970).
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CHAPTER ONE
INTRODUCTION
1.1 Background of the problem
Western Sahara has been called “the last colony” of Africa.1 The territory was colonized by Spain in 1884. 2 During the pan-Maghreb liberation period in the 1950s, the local population, the
Sahrawi also joined the resistance against colonial powers.3 However, when Morocco, Algeria,
Tunisia and Mauritania attained their own independence as nation-states, the “Maghrebian dream” ended. 4 Western Sahara was not only left under the colonial rule until 1975, but it has not yet attained independence. 5 When Spain left the territory, it was “recovered” by Moroccan-
Mauritanian joint control against the Sahrawi’s will.6 At the point, half of the Sahrawi population took refuge in Tindouf, southwestern Algeria and established SADR through the leadership of the
Polisario Front in 1976. At the same time, the other half of the Sahrawi were left under the
Moroccan occupation. 7 While Morocco and the Polisario Front 8 engaged in armed conflict,
Morocco completed its control of 85 per cent of the Western Sahara territory and built a defensive sand and stone berm around the territory by 1981.9 As a result of the berm, Western Sahara is
1Yuka Heya, 'Political opinion and national identity :Dilemma of the Sahrawi ethnic unity after 38years of diaspora' (University of Tromso, 2013) SVF-3901(3901) , p. 5. 2 Ibid. 3 Ibid. 4 Ibid. 5 Ibid. 6 Ibid. 7 Ibid. 8 “The Polisario Front” (the Frente Popular para la Liberación de Saguia el Hamra y Rīo de Oro) was born in Western Sahara with the hands of a Sahrawi leader, El-Ouali Mustapha Said, and his associates on 10th of May 1973. The Polisario struggles to recover total liberty of Western Sahara. 9 Ibid ., p.4. 4 divided into Moroccan and Polisario controlled zones.10
Despite the approach by the international organizations, including the UN, the Sahrawi people have not yet realized their right to self-determination and the conflict has not yet reached a solution.11 While the Sahrawi are found in the different political spaces between Tindouf and
Western Sahara (Moroccan controlled zone), the political opinions of the Sahrawi, particularly on the future status of the territory, have varied considerably.12 Not all of them agree with total independence; some might be able to accept an autonomous plan under the Moroccan authority.13
The Moroccan occupation and forcible annexation of Western Sahara in 1975 has constituted a clear denial of the right of the indigenous Sahrawi population to self-determination as established by the UN and its associated bodies.14 The prolongation of this conflict, which has lasted well over three decades, is a reminder of an enduring violation of a fundamental norm of international law and a responsibility incumbent upon the UN, and the international community as a whole, to redress this aberrant situation.15
The present study attempts to find and analyze the legal issues involved in the Western Sahara dispute, including the legal claims of Morocco and the problems faced in implementing the right of self-determination of the Saharawi.
1.2 Statement of Research Problem
The people of Western Sahara – the Sahrawi’s – are entitled to the right of self-determination that cannot be abridged by any legitimate competing legal claim of Morocco.16 Unfortunately, all
10Ibid. 11 Ibid., p.5. 12 Ibid. 13 Ibid. 14Sidi Omar, The right to self-determination and the indigenous people of Western Sahara, (Cambridge Review of International affairs, 2008), P. 41. 15 Ibid. 16 Jeffrey Smith, State of Self determination: The claim to Sahrawi Statehood ,(2010) http://www.arso.org/Self-DeterminationJSmith310310.pdf (accessed 10 February 2016). 5 diplomatic efforts by the UN and interested parties to achieve the exercise of self-determination have failed.17 The Kingdom of Morocco denies the application of international law to the status of a territory it continues to occupy by force.18 On the other hand, the Polisario Front steadfastly refuses to accept a less-than-proper self-determination process, one to be arrived at by a legitimate vote, including an option for the Sahrawi people to chose independence outright.19 In the case of
Western Sahara, the implementation of the right to self- determination is obscured by a deadlock in the conditions for a referendum of the Sahrawi people and Moroccan settlers in the territory.20
Moreover, the intransigence of the international community in such a case of illegal occupation by supporting Morocco’s claims, the lengthy ceasefire and several attempts at UN mandated referendums on independence, the conflict has not yet been resolved hence impeding the enforceability of this right.21
It is these circumstances which make the case of Western Sahara compelling, for if the organized international community is unwilling to reverse an illegal taking of territory, then there may be little hope of the capacity for international law to apply in all other cases of aggression and territorial conflict.22 The nature of its people’s right to self-determination and the persistent failure of the organized international community to take positive steps in the assurance of that right offers useful lessons for the future, including the uniform application of the United Nations Charter, the role of the UNSC in cases of territorial annexation, the resolution of claims to self-determination by groups within existing states and the legal norms to apply in defining and creating new States.23
Therefore, this study is designed to investigate the nature of the Saharawi’s right to self determination, and the problems faced in the implementation of that right.
17 Ibid., p.2. 18 Ibid., p.2. 19 Ibid. 20 Ibid. 21 Ibid., p.1. 22 Ibid., p.2. 23 Charter of the United Nations, 1 UNTS XVI (hereinafter The Charter and the UN Charter). See http://www.un.org/en/documents/charter/ (accessed on 10 February 2016)). 6
1.3 Objectives of the study
General objective
The objective of the study is to investigate the nature and scope of the Saharawi’s right to self determination and the challenges faced in the implementation of that right.
Specific Objectives
The specific objectives of the study are to:
a. Investigate the nature and scope of the Saharawi’s right to self-determination.
b. Examine how this right has been violated owing to Morocco's illegal annexation of Western
Sahara.
c. Assess the role of the United Nations in the decolonization of Western Sahara, including the
establishment of peacekeeping operations such as MINUSRO.
d. Assess the role of the OAU/AU in the decolonization of Western Sahara based on the
principles and objectives of the OAU/AU Charter
e. Suggest options that may be available for the people of Western Sahara to realize the right
to self-determination.
1.4 Hypothesis
The Moroccan occupation and forcible annexation of Western Sahara in 1975 denies the indigenous Sahrawi population the opportunity to realize their right to self-determination.
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1.5 Research Questions
The following research questions are addressed in the study namely:
a. What is the nature and scope of the right of self-determination of the Saharawi within
international law?
b. What is the legitimacy of the Moroccan claim to the territory of Western Sahara?
c. What role does the UN have in the decolonization of Western Sahara?
d. What role does the OAU have in the decolonization of Western Sahara?
e. What options are available for the people of Western Sahara to enable them to realize the
right to self-determination?
1.6 Theoretical Framework
The conflict over the status of Western Sahara has been simmering for four decades between the
Kingdom of Morocco and the Sahrawi independence movement Frente Polisario.24 Efforts to find a solution to the deadlock appear to be paralysed.25 In order to appreciate and make sense of the conflict, it is prudent to examine the underpinning theories. This paper will discuss two theories, that is, the Nationalism theory and the Marxism theory.
Nationalism is a shared group feeling in the significance of a geographical and sometimes demographic region seeking independence for its culture and/or ethnicity that holds that group together.26 This can be expressed as a belief or political ideology that involves an individual
24 Hellwig Annette, 'A forgotten conflict' (Qantara, 23 July )
From a political or sociological perspective, there are two main perspectives on the origins and basis of nationalism according to Alexander Montyl.28 One is the primordialist perspective that describes nationalism as a reflection of the ancient and perceived evolutionary tendency of humans to organize into distinct groupings based on an affinity of birth. 29 The other is the modernist perspective that describes nationalism as a recent phenomenon that requires the structural conditions of modern society in order to exist.30According to Roger Masters both the primordialist and modernist conceptions of nationalism involve an acceptance of three levels of common interest of individuals or groups in national identity:31 Firstly, at an inter-group level, humans respond to competition or conflict by organizing into groups to either attack other groups or defend their group from hostile groups.32 Secondly, at the intragroup level, individuals gain advantage through cooperation with others in securing collective goods that are not accessible through individual effort alone33 and thirdly, on the individual level, self-interested concerns over personal fitness by individuals either consciously or subconsciously motivate the creation of group formation as a means of security.34
In the Western Sahara case their was a common interest at the intergroup level that was caused by
Spain’s relentless occupation of Western Sahara. In 1966 the UN began to call for a referendum to be held concerning the self-determination of the people of Spanish Sahara.35 Spain ignored these calls and as time continued to elapse without any signs of the Spanish government’s willingness to surrender its hold, members of the Sahrawi communities began to demonstrate their desire for self-determination.36 Seeing as “[t]he Saharawis never constituted a nation in precolonial times”
27 Ibid., p. 136 28 Alexander Montyl, Encyclopedia of Nationalism, (Academic Press, San Diego, 2001) p. 251. 29 Ibid., p.251. 30 Ibid. 31 Roger Masters, The Nature of Politics, (Yale University Press, 1989) P.73. 32 Supra, note, 28, p. 253. 33 Ibid. 34 Ibid. 35 Susan Humphrey, 'The Western sahara conflict' (2009) www.atlismta.org (accessed on 3 March 2016). 36 Ibid. 9 this newfound nationalism was a “phenomenon that took root only in [this] latter part of the
Spanish colonial period.”37
Marxism theory originated from the mid-to-late 19th century works of German philosophers Karl
Marx and Friedrich Engels, that analyzes class relations and societal conflict using a materialist interpretation of historical development and a dialectical view of social transformation.38 The
Marxian analysis begins with an analysis of material conditions and the economic activities required to satisfy society's material needs. It is understood that the form of economic organization, or mode of production, gives rise to, or at least directly influences, most other social phenomena – including social relations, political and legal systems, morality and ideology. The economic system and these social relations form a base and superstructure. As forces of production, most notably technology, improve, existing forms of social organization become inefficient and stifle further progress. As Karl Marx observed: "At a certain stage of development, the material productive forces of society come into conflict with the existing relations of production or this merely expresses the same thing in legal terms with the property relations within the framework of which they have operated hitherto. From forms of development of the productive forces these relations turn into their fetters. Then begins an era of social revolution."39 These inefficiencies manifest themselves as social contradictions in society in the form of class struggle.40 Under the capitalist mode of production, this struggle materializes between the minority (the bourgeoisie) who own the means of production, and the vast majority of the population (the proletariat) who produce goods and services.41 Marx therefore advocates for an overthrow of capitalism by the proletariat and the development of a classless communist society.
37 Ibid. 38 Wikipedia, 'Marxism' (Wikipedia, 23 January 2016) www.wikipedia.org (accessed 10 February 2016). 39Karl Marx, A contribution to the Critique of political Economy (Progress Publishers, Moscow 1859). 40 Paul Gregory and Robert Stuart, Comparing Economic Systems in the Twenty-First century (Cengage Learning, Paperback, 2003) P. 62. 41 http://www.shelf3d.com/i/marxism (accessed on 7th March 2016). 10
According to Marx a nation that oppresses another cannot be free, and Lenin also argued that nations oppressed by imperialism have the "right to self-determination." 42 They opposed the elevation of any nation over another and any culture over the other.43 Lenin compared the right of self-determination to the right of divorce (writing at a time when it was difficult for a woman to obtain one).44 We support the ability of women to dissolve a marriage not because we want all marriages to break up, he argued, but because equality of the sexes cannot exist where women are legally bound to their husbands.45 Likewise with national oppression. Workers' unity cannot be built without workers in an imperialist or oppressor country supporting the right of self- determination of the oppressed nation. 46Hence, in the Western Sahara dispute, unity can only be achieved if the Moroccans (the oppressor) recognize that The Saharawi(the oppressed) have a right to self determination. The good news is that evidence from around the world suggests that Morocco’s process of democrati- sation and declared commitment to human rights, if realised, bodes well for a peaceful and viable agreement on the Western Sahara.47
1.7 Literature Review
The notion of self-determination as a universal principle, whether viewed through a political, moral, or legal lens, has been, and continues to be imprecise and in dire need of further clarification. 48 U.S. President Woodrow Wilson understood self-determination to be the belief that every people had the right to select its own form of government, to "choose the sovereignty under which they shall live," and thus be free of alien masters.49 Although there was initially
42 Paul D'amato, 'THE MEANING OF MARXISM' (Marxists and the Right to Self-determination, 21ST June)
Versailles Peace Conference linked self-determination with the "principle of nationalities," or an ethnographic view of the "self."50
While Palestinians, Kurds, and other peoples without an independent state like to root their claims to sovereignty in the UN, the UN Charter added little clarity to existing notions of self- determination in international law.51 The document refers only twice to the "principle of equal rights and self-determination of peoples," and then only in a preamble to a statement of the broader purpose of the organization. 52 Such passing references stand in stark contrast to the operative Principles of the Charter that spoke of the need for its member states to refrain from "the threat or use of force against the territorial integrity or political independence of any state" and ruled out UN intervention in "matters which are essentially within the domestic jurisdiction of any state."53
It was not until 1960 with the passage of the UN Declaration on the Granting of Independence to
Colonial Countries and Peoples 54 that self-determination began to develop coherence as a principle. It envisioned full self-determination as a goal for all peoples subject to "alien subjugation, domination, and exploitation," intolerable political living conditions which it identifies as a denial of a people's fundamental human rights.55
Sidi .M. Omar observes that it was with the adoption by the UNGA Resolution 1514 (XV), UN
Doc. A/4684 on 14 December 1960, 56 which embodied the Declaration on the Granting of
Independence to Colonial Countries and Peoples, that self- determination emerged as a right rather
50 Ibid. 51 Supra, note 48. 52 Gerry Simpson, “The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age” 32 Stanford Journal of International Law 266 (1996). 53 "Purposes and Principles," chap. 1, art. 2 (7), Charter of the United Nations, San Francisco, June 26, 1945. 8/2/2016 12:15 pm 54 United Nations Resolution on the Declaration on the Granting of Independence to Colonial Territories and Peoples, 1514 (XV), 14 December 1960, UN Doc. A/4684(1960). 55 Ibid. 56 Ibid. 12 than a simple principle in the United Nations Charter.57 The political imperative of decolonization also served as the driving force behind that shift, and consolidated the right of colonial peoples to self-determination as expressed later in the international human rights covenants of the 1960s as
Hurst Hannum has suggested.58
Although the issue remains unsettled, self-determination has increasingly been considered a peremptory norm of international law59 of which violation is expressly characterized as a crime in accordance with UNGA Resolution 2621 (XXV) UN Doc. A/8086 of 12 October 1970.60
Resolution 1514 (XV) clearly establishes in paragraph 5 that the right to self-determination is to be exercised and implemented in accordance with the ‘freely expressed will and desire’ of the peoples concerned.
Alfred Coban describes The Right to Self-determination as a right of people to participate in their own governance, free from the undue influence of outside actors. In certain circumstances, for example, when a territory is coming out of occupation or colonial domination, or, arguably, its people are subject to significant levels of oppression within their current state structure, self- determination means the right of the people to constitute an independent state and determine its own government for itself.61In other circumstances, a state‘s right to territorial integrity under international law may require that a people which currently exist within a recognized state exercise their right to self-determination internally, meaning within the existing state‘s governmental framework.62
The present paper addresses the issue of implementation of the right to self-determination of the
57 Sidi Omar ‘The legal claim of the Saharawi people to the Right to Self –determination and decolonization’[2008] http://www.unisa.ac.za/contents/faculties/law/docs/03omar.pdf (accessed on 7th March 2016) p.67. 58 Hurst Hannum, Autonomy, Sovereignty, and Self-determination: The accommodation of conflicting rights (University Of Penssylvania Press, 1980). 59 Juan Soroeta, El conflicto del Sahara Occidental, reflejo de las contradicciones y carencias del Derecho Internacional (Universidad del País Vasco, Auflage, 2001). 60 United Nations Resolution on the Programme of action for the full implementation of the Declaration on the granting of Independence to colonial countries and people, 2621 (XXV), 12 October 1970, UN Doc. (2621 A/8086). 61Alfred Cobban , The Nation State and National Self-Determination, (Collins, London 1969) p. 45. 62 Ibid., p. 46. 13 peoples of Western Sahara and the territorial claims of Morocco under principles of international law. It has been hypothesized by Sidi .M. Omar that the Moroccan occupation and forcible annexation of Western Sahara in 1975 denies the indigenous Sahrawi population the opportunity to realize their right to self-determination. 63
In its advisory opinion on Western Sahara of 16 October 1975, the ICJ referred to self- determination as a right held by ‘peoples’. Héctor Gros Espiell has interpreted ‘people’ in this sense to mean ‘a specific type of human community sharing a common desire to establish an entity capable of functioning to ensure a common future’.64 In this context, the ICJ held in the case of Western Sahara that:
“The information furnished to the Court shows (a) that at the time of colonisation Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organised in tribes and under chiefs competent to represent them; (b) that Spain did not proceed upon the basis that it was establishing its sovereignty over terra nullius: thus in his Order of 26 December 1884 the King of Spain proclaimed that he was taking the Rio de Oro under his protection on the basis of agreements entered into with the chiefs of local tribes.”65
It is true that the ICJ was not requested to express its opinion on the existence, or lack thereof, of a
Saharawi people at the time of Spanish colonisation.66 However it stated that the territory was not a terra nullius, ownerless territory susceptible to acquisition through occupation. 67 The significance of its conclusions, which were drawn from the many historical facts at its disposal, lies in affirming that indigenous peoples inhabited Western Sahara prior to Spanish colonisation, and that due to their subsequent subjection to alien domination, they were entitled to exercise their right to self-determination.68 Besides, the ICJ finding also serves to refute the Moroccan and
Mauritanian claims that denied the existence of a distinct socially and politically organised pre- colonial Saharawi entity.69
The uncertain status of self-determination in international law continues to spark debate. An early
63 Supra, note 57. 64 Ibid., p. 68. 65 ICJ (1975) Advisory Opinion on Western Sahara 1975 ICJ 12 pars 75-83 P.2. 66 Ibid. 67Ibid. 68 Ibid. 69 Ibid. 14 community of legal "formalists" argued that self-determination was incompatible with international law because all states with a right to membership in the international system were already members. 70 Under such logic, Bosnia, Kosovo, and East Timor, should not enjoy independence. Other international legal scholars argue that the concept of self-determination may not yet be a legal norm, but it is nevertheless necessary to recognize that it is evolving in that direction.71
Western Sahara provides an interesting test case in just how divided the world remains on whether to support self-determination in a territory amid a neighboring state's irredentist claims.72 In the case of Western Sahara, for example, Morocco and Mauritania have laid claim to its territory even as Spain and Algeria support its independence.73 Spain colonized the territory in 1884 and held it as a Spanish protectorate. 74From 1961 onwards, Spain administered Western Sahara as a non-self- governing territory under Chapter XI of the U.N. Charter.75 This implicitly recognized the right of its inhabitants to self-determination.76 In 1966, UNGA reaffirmed the right to self-determination of the peoples of the Spanish Sahara77 and requested Spain, in consultation with other interested parties including the governments of Morocco and Mauritania, to establish procedures "for the holding of a referendum under UN auspices with a view to enabling the indigenous population of the Territory to exercise freely its right to self-determination."78 Spain, Morocco, and Mauritania, however, essentially colluded to postpone the referendum.79 After Spain announced that it would hold a referendum under UN auspices in 1975, the UNGA, at Morocco's urging, requested that the
70Nathaniel Berman, “Sovereignty in Abeyance: Self-Determination and International Law,” 7 Wisconsin International Law Journal 62 (1988). 71 Supra, note 48. 72 Supra, note 49, p.18. 73 Supra, note 48. 74 Ibid. 75 Ibid. 76 Karen Knop, Diversity and Self-Determination in International Law (Cambridge University Press, Cambridge, 2002), p. 110. 77 United Nations Resolution on the Question of Ifni and Spanish Sahara, 2229 (XXI), 20 December 1966, UN Doc. A/Res/21/2229(1966). 78 Thomas Frank, “The Stealing Of The Sahara,” 70 American Journal Of International Law 702 (1976). 79 Ibid., p. 703. 15
ICJ determine two things: "(1) Was Western Sahara … at the time of colonization by Spain a territory belonging to no one (terra nullius)?" and, if not, "(2) What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?80 In an advisory opinion, the Court agreed unanimously on the first question that at the time of colonization by Spain,
Western Sahara was not terra nullius. As to the second question, the Court acknowledged that its opinion on the question of historic title should in no way be seen as detracting from the fundamental right of self-determination of the people of Western Sahara.81
The Court ultimately stated that Morocco and Mauritania did not have a valid claim to Western
Sahara based on historic title, dealing a blow to the "automatic retrocession" to their own control which both demanded.82 However, reference to Morocco's "legal ties" to the territory shifted the terms of the debate.83 By construing "legal ties" as broader than mere ties of territorial sovereignty, the Court "blurred the line between 'self' and 'territory' arguments that it had drawn by equating the right of self-determination with the free will of the colonial population, and legal ties with pre- colonial claims to territory.” 84 Such a finding arguably weakened, rather than bolstered, the
"strength and universality of the principle of self-determination.”85
The court ruling opened the door to arguments that challenged the paradigm framing the rules on the acquisition of sovereignty over territory at the time. Abdeslam Maghraoui, acknowledged that before European colonization, the authority of Moroccan sultans "did not extend evenly and consistently to all territories they considered to be under their sovereignty" but, nevertheless, he argued that official representatives appointed through royal decrees operated throughout the
80 Mark Janis, “The International Court of Justice: Advisory Opinion on the Western Sahara,” 17 Harvard International Law Journal 609-610 (1976). 81Supra, note 65, p. 710. 82Ibid., p. 711. 83 Supra, note 48. 84 Karen Knop, “Diversity and Self-Determination in International Law,” Leiden Journal of International law, 132-133 (2002). 85 Rodgers Clark, “ The ‘Decolonisation’ of East Timor and the United Nations norms on Self- determination and Aggression” 7 Yale Journal Of World Public Order 26 (1995). 16 distant Saharan territories within the framework of the sultan's administrative apparatus. 86
Morocco's occupation of Western Sahara would, in its view, help reconstitute an empire that it had lost at the time of the Spanish colonization of its territory and thus vindicate its historic title to the territory. 87 The Madrid agreement between Morrocco, Mauritania and Spain amounted to a
Spanish endorsement of a decolonization formula that involved partition of the territory between
Morocco and Mauritania. UNGA Resolution 3458A, adopted by the General Assembly on
December 10, 1975, reaffirmed the right of the inhabitants of Western Sahara to self- determination but also noted the Madrid agreement and called for further consultations with the territory's population without offering any formal timetable or condemnation of Moroccan actions.
In effect, this set the stage for decades of stalemate.
While proponents of Western Sahara's independence say the dispute should be an open-and-shut case from the perspective of international law, given "the peremptory norm of international law with respect to decolonization,"88 a body no less important than the International Crisis Group described the failure to break the deadlock to be the result of what it sees as the UN's continuing focus on self-determination. Its report maintains:
By continuing to define the issue as self-determination, the UN has encouraged the Polisario Front and Algeria to continue to invest all their energy in seeking the realization of this principle and at the same time has pressured the Moroccan government to pay lip service to self-determination, when in reality Rabat has never sincerely subscribed to it. The UN thereby has inhibited the parties to the dispute from exploring the possibility of a resolution based on a different principle or set of principles.89
The ICJ thus recognizes that self-determination is anything but a panacea for the resolution of conflicting sovereignty claims, as it offers a one-size-fits-all solution that may not be appropriate
86 Abdeslam Maghraoui, “Ambiguities of Sovereignty: Morocco, The Hague, and the Western Sahara Dispute,” 8(1) Mediterranean Politics 117 (2003). 87"Self-Determination: The Cases of Fiji, New Caledonia, Namibia, and the Western Sahara," Proceedings of the American Society of International Law, (1988) p. 441. 88 Robert Vance , “Recognition as an Affirmative Step in the Decolonization Process: The Case of Western Sahara,” 7 Yale Journal of World Public Order 45 (1980-1981). 89 ‘Western Sahara: Out of the Impasse,’ Middle East/North Africa Report N°66 – 11 June 2007 p. 9. 17 in the case of some present-day conflicts, including that being waged over Western Sahara.90
Within the scholarly community, there is a growing realization that the law of self-determination as crystallized in the era of decolonization is inadequate to deal with modern disputes involving conflicting sovereignties.91 Accordingly, Gregory H. Fox, a professor of law at Wayne State
University Law School, notes that "with the effective end of decolonization and the virtually unanimous refusal of states to recognize a right of secession, the legal norm [of self- determination] appears to have been deprived of much of its content."92 In his view, such a right acts as a general tool that allows a variety of particular rights to be joined together. This allows us
"to demonstrate that a principled coexistence is possible between claims to group autonomy and the maintenance of states' territorial integrity."93 What must follow, in Fox's view, is the reframing of the rule of self-determination as a principle permitting greater flexibility in its interpretation and application.94
Hurst Hannum, is largely in agreement with Fox and articulates a new vision of self-determination within international law, a vision which "will support creative attempts to deal with conflicts over minority and majority rights before they escalate into civil war and demands for secession."95This right to autonomy is not an end in itself but rather a political tool to ensure that the rights and needs of the concerned population are properly addressed in light of their unique goals.96
The above literature is only a limited representation of the much that has been written on the
Western Sahara dispute. The question remains how, then, would an application of self- determination, redefined loosely along the lines described above, be achieved in the context of the
90 Supra, note 48. 91 Ibid. 92 Gregory Fox, ‘Self-Determination in the Post-Cold War Era: A New Internal Focus.’ 16 Michigan Journal of International Law 733 (1995). 93 Supra, note 48. 94 Ibid. 95 Hurst Hannum, The Right of Self-Determination in the Twenty- First Century 55 Washington and Lee Law Review 473 (1998). 96 Ibid., p. 474. 18
Western Sahara dispute, and what might it look like? The suitability of the UN system as the dispute's sole arbiter will continue to be called into question. Self-determination must be addressed as a means to an end rather than an end in itself "that end being a democratic, participatory political and economic system in which the rights of individuals and the identity of minority communities are protected."97
1.8 Research Methodology
This research relied on both primary and secondary data. The sources of primary data were international and regional instruments, resolutions, declarations, decisions, press releases and case law. They were sourced from the University library and online sources.
Secondary data was also used, especially international and regional journals, reports and books concerning the dispute in Western Sahara.
97Ibid., p. 66. 19
1.9 Preliminary Chapter Breakdown
The dissertation is discussed in five chapters namely:
Chapter One: Introduction
1.1. Background
1.2. Statement of the Problem
1.3. Objectives of the Study
1.4. Hypotheses
1.5. Research Questions
1.6. Theoretical Framework
1.7. Literature Review
1.8. Research Methodology
1.9. Preliminary chapter breakdown
Chapter Two: Nature and Scope of the Right to Self-determination
2.1. Introduction
2.2. Definition of the right to self-determination
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2.2.1 Historical development of the right to self-determination
2.2.2 Types of self-determination
2.3. People entitled to the right to self-determination
2.4. Exceptions to the right to self-determination
2.5 Conclusion
Chapter Three: UN Efforts in the Decolonization of Western Sahara
3.1. Introduction
3.2. History of Western Sahara
3.3. Resolution requesting Spain to "take all necessary measures" to decolonize the territory, while entering into negotiations on "problems relating to sovereignty."
3.4. UN Settlement Plan: Conducting a Referendum
3.5. Options offered by the UN: Integration with Morocco or Independence of the Saharawi
3.6. UN Peace Keeping Operations-MINUSRO
3.7. Efforts of the UN Security Council and Secretariat in resolving the dispute
Chapter Four: Denial of the Right to Self-determination
4.1. Introduction
4.2. Morocco’s territorial claims over Western Sahara-“ A Greater Morocco”
4.3. ICJ Advisory Opinion
21
4.4 Options available to Western Sahara Pursuant to Resolution 1514
Chapter Five: Conclusion and Recommendations
5.1 Conclusion
5.2 Recommendations
2.0 Preliminary Bibliography
Text books
1. Malcolm Shaw, International Law, ( Cambridge University Press, Cambridge, 2003).
2. Tony Hodges, Western Sahara: The Roots of a Desert War (Westport, Connecticut:
Lawrence Hill & Co., 1983);
3. Erik Jensen, Western Sahara: Anatomy of a Stalemate ,( Lynne Rienner Publishers,
Colorado, 2005).
4. John Dugard, The South West Africa/Namibia dispute: documents and scholarly writings
on the controversy between South Africa and the United Nation, ( University of California
Press, Los Angeles, 1973).
5. Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge
University Press, Cambridge,1995).
6. P.K. Menon, The law of recognition in international law: basic principles ( Edwin Mellen
Press, New York, 1994).
7. James Crawford, The Creation of States in International Law, (Clarendon Press, Oxford,
2006).
22
Journal Articles
1. Rupert Emerson, "Self-Determination," 65 American Journal of International Law,
(1971).
2. Martti Koskenniemi, "National Self-Determination Today: Problems of Legal Theory
and Practice," 43 International and Comparative Law Quarterly, (1994).
3. Charles Dunbar, "Saharan Stasis: Status and Future Prospects of the Western Sahara
Conflict," 4 Middle East Journal, (2000).
4. Robin White, "Self-Determination: Time for Re-Assessment?" 27 Netherlands
International Law Review, (1980).
5. Jacques Roussellier, "Quicksand in the Western Sahara? From Referendum Stalemate to
Negotiated Solution," 10 International Negotiation, (2005).
Official Documents
1. Judge Christopher Weeramantry, Case Concerning East Timor (Portugal v. Australia), ICJ
Reports 1995, Dissenting opinion 107.
2. United Nations General Assembly Resolution on the Question of Western Sahara ,3437
(XXXIV), 21 November 1979, UN Doc. A/RES/34/37.
3. International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 1, 999 U.N.T.S.
171; International Covenant on Economic, Social and Cultural Rights, Dec. 16,1966, art.
1,993 U.N.T.S. 3.
Websites
1. United Nations Mission for the Referendum in Western Sahara (MINURSO), “Milestones
in the Western Sahara Conflict,” U.N. document (undated)
2. Statute of the International Court of Justice
2016). 23
3. “Question of Spanish Sahara”
(accessed 10 March 2016).
4. “Report of the Commission on Conflict and Post-Conflict Situations in Africa” (Peace and
Security Council) (29 June 2008), AU Doc. PSC/HSG/2 (CXXXVIII) union.org/root/AU/AUC/Departments/ PSC/ps/ PSC_2008_2009/ PSC%202008%20(105- /138/Report/2008_138_RE.pdf> (accessed 10 March 2016) 5. OAU AHG Res. 104 (XIX) June 1983 http://www.africa- union.org/root/au/Documents/Decisions/hog/sHoGAssembly1983.pdf (accessed on 3 March 10, 2016). 6. Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council (S/2002/161) 12 February 2002), 7. “Country Recognitions of the SADR” at the website of the Saharawi Arab Democratic Republic 8. The MINURSO website (accessed 17 February 2016). 9. Report of the Secretary-General on the situation concerning Western Sahara (13 April 2009), UN Doc. S/2009/200 http://daccess-dds- ny.un.org/doc/UNDOC/GEN/N09/290/58/IMG/N0929058.pdf? (accessed 17 February 2016). 10. “Agreement between the Republic of Indonesia and the Portuguese Republic on the question of Timor” (5 May 1999) (accessed 2 October 2009); available from: http://www.eastimorlawjournal.org/UN/indonesiaportugalonquestionofeasttimor.html> (accessed on 9 February 2016). 11. Human Rights Watch, Human Rights in Western Sahara and in the Tindouf Refugee Camps (New York: Human Rights Watch, 2008) 24 January 2016). CHAPTER TWO NATURE AND SCOPE OF THE RIGHT TO SELF-DETERMINATION 2.1 Introduction This chapter discusses, inter alia, the nature and scope of the right to self-determination. Of particular concern is the right to self-determination from the perspective of the indigenous people of Western Sahara. This chapter will, as a result, help answer the first research question posed in Chapter One, namely, what is the nature and scope of the right to self-determination of the Saharawi within international law. This question will require an in-depth consideration of the right to self-determination and who exactly is entitled to that right. The discussion of the right of the Sahrawi people to self- determination is prompted not only by academic interest but also by the fact that the implementation of this right still constitutes the legal and political prerequisite for achieving a just, viable and lasting solution to the conflict in Western Sahara. 2.2 Definition of the Right to Self-determination Generally speaking, right to self-determination means the right of a particular group of people to freely determine and control their political, economic or socio-cultural destinies. a. Historical Development of the right to self-determination In the late 1800s, European countries raced to establish their influence in Africa, building 25 economic and political outposts.98 To establish their authority, they signed treaties and agreements with local chiefs, sheikhs and other indigenous rulers providing security guarantees against other European states, in exchange for exclusive rights to economic resources within the colonial territory.99 European states used the treaties for political purposes while regarding them as having 100 dubious legal significance. The prevailing legal reasoning at the time was that “uncivilized” nations could not be subjects of international law, and therefore the treaties had little legal significance.101 At an international conference in Berlin in 1884, the colonial powers convened to legitimize their acquisition of territory in Africa. They recognized the need for the African rulers‘ consent in order to render valid a cession of territory or the granting of rights, thus treating, for the first time, 102 African nations as subjects of international law. The resulting agreements, however, allowed each European power free rein to annex its existing protectorates without consulting the affected African state.103 On the founding of the UN in 1945, Article 1 (paragraph 2) of its Charter specified that one of the purposes of the organization is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”104 Self-determination was also alluded to in Chapter VII on the International Trusteeship System105 and in Chapter XI on the 98 Report of the Committee on the United Nations on the Legal issues involved in the Western Sahara dispute: The principle of self-determination and the legal claims of Morocco, June 2012, https://www2.nycbar.org (accessed 28 June 2016) p. 23. 99 Ibid. 100 Malcolm Shaw, The Western Sahara Case, 49, British Yearbook of International Law , 119 (1979) p. 133. 101 Larry Hanauer, The Irrelevance if Self-Determination Law To Ethno-National Conflict: A New Look At The Western Sahara Case, 9, Emory International Law Review, 133 (1995), p. 138. 102 Ibid. 103 C.H. Alexandrowicz, “The Role of Treaties in The European-African Confrontation in the 19th Century,” in AFRICAN INTERNATIONAL LEGAL HISTORY 27, (A. Mensah-Brown Ed., 1973), p. 46- 47. 104 http://www.un.org/aboutun/charter/, (accessed 28 June 2016). 105http://www.un.org/aboutun/charter/, (accessed 28 June 2016). 26 Declaration Regarding Non-Self-Governing Territories. 106 In particular, GA Resolution 1514 (XV) of 14 December 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples affirmed that “all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 107 As will be discussed later, this resolution is of great importance to the case of Western Sahara. Hence, the right to self-determination can be defined as an individual and collective right to "freely determine . . . political status and [to] freely pursue . . . economic, social and cultural development." It is a guarantee of autonomy and self-governance; in short, an “exercise in freedom.”143 In practical terms, it is the right to effective political participation, including, ideally, the right to vote, petition the government, speak out and dissent against the government, and hold and run for office.144 It includes the right “of national or ethnic groups within the state to assert some degree of ‘autonomy’ over their affairs, without giving them the right to secede.”145 Scholars point out that upon the adoption of GA Resolution 1514 (XV), also termed the 'Magna Carta' of decolonization, self-determination emerged as a right rather than a simple principle of international law. Hurst Hannum suggests that the political imperative of decolonization served as the driving force behind the shift from the Charter's principle of self-determination to the right of self-determination expressed later in the international human rights covenants of the 1960s.108 It is evident that the relationship established by the UN between self-determination and decolonization provided the basis for the widespread acceptance in international law of the fact that this right is solely applicable to peoples under colonial and alien domination, thus excluding 'indigenous peoples' as subjects of the same right.109 However, the objective of the present study is limited to examining the right of self-determination in relation to a particular case in which the applicability of this right to the people concerned has been established by the UN and its concerned bodies. 106 UN Charter, Chapter XI, Article 73, http://www.un.org/aboutun/charter/, (accessed 28 June 2016). 107 Supra, note 54. 108 Supra, note 58. 109 Supra, note 14, p.42. 27 Juan Soroeta Liceras110 points out that although the issue remains unsettled, self-determination has become a peremptory norm of international law, of which violation is expressly characterized as a crime. In particular, GA Resolution 2621 (XXV) of 12 October 1970 (paragraph 1) declared, “the further continuation of colonialism in all its forms and manifestations is a crime which constitutes a violation of the Charter of the United Nations, the Declaration on Granting Independence to Colonial Countries and Peoples and the principles of international law”.111 These terms are again reaffirmed in GA Resolution 2625 (XXV) of 24 October 1970.112 Another closely related issue is the prohibition in contemporary international law of the use of force against peoples under colonial and alien domination. In accordance with the two international covenants of 1966, all states not only have a negative legal duty to refrain from taking any measures that would deprive colonial peoples of exercising their right to self-determination, but also are under positive obligation to respect, promote and assist them in the exercise of this right.113 The right to self-determination is indisputably a norm of jus cogens.114 Jus cogens norms are the highest rules of international law and they must be strictly obeyed at all times. Both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination also has the legal status of erga omnes.115 The term "erga omnes" means "flowing to all." 116 Accordingly, ergas omnes obligations of a State are owed to the 110 Juan Liceras, International Law and the Western Sahara Conflict (Wolf Legal Publishers(WLP) 2014) P.1. 111Supra, note 60. 112 United Nations Resolution on the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, 2625 (XXV), 24 October 1970, UN Doc. A/RES/25/2625(1970). 113 United Nations General Assembly Resolution on International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, 2200(XXV), 16 December 1966, UN Doc. A/Res/21/2200. 114 Study Prepared by Hector Gros Espiell, Special Rapporteur of the Sub Commission on Prevention of Discrimination and Protection of Minorities, on The right to self determination: Implementation of United Nations Resolutions, (E/CN.4/Sub.2/405/Rev.1), 1980. 115 Karen Parker, 'Understanding Self-Determination: The Basics' (Humanitarian Law, 8 june) The exercise and implementation of the people's right to self-determination presupposes the free expression of their will.118 Resolution 1514 (XV) (paragraph 5) provides that colonialism is to be brought to an end in accordance with the 'freely expressed will and desire' of the peoples concerned.119 Furthermore, GA Resolution 1541 (XV) of 15 December 1960 details the principles that determine the outcomes to which the exercise of self-determination could lead in the case of a 'Non-Self-Governing Territory'. Principle VI states that a Non-Self-Governing Territory can be said to have reached a full measure of self-government by: (a) emergence as a sovereign independent State; (b) free association with an independent State; or (c) integration with an independent State.120 What is of great importance is that all three cases should be the result of a free and voluntary choice by the people of the territory concerned and expressed through informed and democratic processes.121 b. Types of Self-determination There are basically two types of self-determination;122 i. Internal self-determination; and ii. External self-determination. 117 Ibid, p.1. 118 Supra, note 14, p. 2. 119 Supra, note 54. 120 United Nations General Assembly Resolution on the Principles which should guide members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter, 1541 XV, 15 December 1960, UN Doc. A/Res/1541(XV). 121 Supra, note 14, p. 3. 122 Chinoso Ijezie, ' RIGHT OF PEOPLES TO SELF-DETERMINATION IN THE PRESENT INTERNATIONAL LAW' (Academia) 29 Thus, Michael C.Van Walt van Praag and Onno Seroo in their report and analysis of the International Conference of Experts on the “Implementation of Right to Self-Determination as a contribution to conflict prevention” held in Barcelona, from 21-27 November 1998 succinctly explained as follows: “By Internal self-determination is meant participatory democracy; the right to decide the form and identity of rulers by the whole population of a State and the right of a particular group within the State to participate in decision making at the State level. Internal self- determination can also mean that right to exercise cultural, linguistic, religious or (territorial) political autonomy within the boundaries of the existing state. By external self- determination (described by some as ‘full self-determination’) is meant the right to decide on the political status of a people and its place on the International community in relation to other states including the right to separate from the existing states of which the group concerned is a part, and to set up a new independent state.” 123 In other words, ‘Internal self-determination’ can take the form of participatory democracy, federalism, confederalism, unitarism, regionalism, local government, self-government within the existing state or any other arrangement that accord with the wishes of the people but compatible with the sovereignty and territorial integrity of the existing state.124 ‘External self-determination’ on the other hand can take the form of independence or separation or secession or self-government outside the existing state, or any other association that accord with the wishes of the people, which may not be compatible with the sovereignty and territorial integrity of then existing state.125 Thus, the United Nations Resolution 2625 (XXV)126 provides that: “The establishment of a sovereign and independent state, the free association or integration with an independent state, or the emergence into any other political status freely determined by a people constitutes mode of implementing the right self-determination by that people.” 123M.C van Walt van Praag & O. Seroo, available at http://www.unescocat.org/pubang.html (accessed on 25 July 2016). 124 Supra, note 122, p. 3. 125 Ibid. 126 Supra, note 106. 30 2.3 People entitled to the right of self-determination As noted above, the Charter and the various United Nations Resolutions refer to the principle of self-determination that belongs to “peoples.”127 However, it is clear that not all groups enjoy the same “right” to self-determination under international law. 128 Aureliu Cristescu, surveyed the relevant U.N. documents and found no commonly accepted, clearly articulated, standards for determining what groups in general qualify as “peoples” entitled to exercise the right to self- determination without potentially resulting in the disintegration of the territorial integrity of established nation states.129 In some United Nations documents the principle of self-determination seems to acquire a universal application, or a collective right belonging to all “peoples,” regardless of whether they inhabit Non-Self-Governing Territories or existing states.130 The United Nations Charter Article I(2), for instance, refers to the “principle of equal rights and self-determination of peoples.” Article 55 of the Charter repeats this phrase, which appears to convey a universalist understanding of the right of all “peoples” to self-determination. Similarly, the International Covenant on Civil and Political Rights (ICCPR) has also adopted a universalistic concept of “peoples,” providing in Article 1 that, “all peoples shall have the right of self-determination.” The U.N. General Assembly adopted a universalistic approach to the right of all “peoples” to self- determination in Resolution 637 A (VII), which provides that “The States Members of the United Nations shall uphold the principle of self-determination of all peoples and nations.”131 Cristescu thus concluded, “there is no text or recognized definition from which to determine what is a ‘people’ possessing the right in question.” For that reason, Cristescu noted, “the United Nations 127 Supra, note 1, p. 32. 128 Ibid. 129 Aureliu Cristescu, The right to self-determination : historical and current development on the basis of United Nations instruments (New York : United Nations 1981) paras 31,46. 130 Supra, note 1 .p.32 131 United Nations General Assembly Resolution on the right of people and nations to self- determination,637 A (VII), 16 December 1952,UN Doc. A/RES/637 (VII)A-C. 31 has proceeded with caution in cases of political self-determination, although it has acted firmly in the matter of the elimination of colonialism.”132 One thing is clear: the term “peoples” need not comprise the inhabitants of an existing state.133 The UN Charter uses the term “peoples” separately from its use of the term “state,” implying that each term has its own distinct meaning.134 The U.N. Secretariat confirmed this distinction in a memorandum in which the Secretariat described “peoples” as “groups of human beings who may, or may not, comprise states or nations.”135 Consistent with the Charter‘s separate use of the terms “peoples” and “state,” General Assembly Resolution 637 also used the terms “peoples” and “nations” separately.136 However, regardless of how the term “peoples” when applied to the right to self- determination can be applied in other contexts, as was noted above, state practice, supported by International Court of Justice Advisory Opinions and General Assembly Declarations, has led to the gradual formation of customary international laws providing all “peoples” inhabiting Non- Self-Governing Territories with this right. Laurence Hanauer137 sums it up best: the Charter, Human Rights Conventions, General Assembly Resolutions, Opinions of the International Court of Justice and state practice have collectively defined the right to self-determination as the right to decolonization and attainment of self- government for peoples inhabiting Non-Self-Governing and Trust Territories, through a process that takes into account the freely expressed will of the people. A consensus has emerged that there must be some link between the “people” entitled to self- determination in the decolonization process and a specific Non-Self-Governing Territory.138 In 132 Supra, note 118, paras 279. 133 Supra, note 1, p.33. 134 United Nations Charter, Chapter IX: International Economic And Social Co-operation, Article55. 135 Helen Quane, “The United Nations and the Evolving Right to Self-Determination,” 47(3) The International and Comparative Law Quarterly, p. 543 (1998). 136 Supra, note 120. 137 Supra, note 101. 138 Supra, note 1, p.34. 32 Article 73(e), regarding the colonial territories where peoples without self- government are living, Resolution 1541 links “peoples” to “territories.” 139 It then goes on to define those territories according to the following characteristics: (1) geographically separate and (2) ethnically and/or culturally distinct from the colonial administering power.140 Similarly, the two primary United Nations human rights conventions, the International Covenant on Civil and Political Rights141 and the International Covenant on Economic, Social and Cultural Rights,142 primarily define self-determination on a territorial basis. According to these documents, ethnic, religious, cultural or historic ties without any association with the people inhabiting a territory do not create any binding legal rights to self- determination.143 Cristescu also arrived at a definition which avoided referring to specific characteristics along ethnic or cultural lines, concluding that the “term ‘people’ denotes a social entity possessing a clear identity and its own characteristics,” and that it “implies a relationship with a territory.”144 In its Advisory Opinion regarding the status of Western Sahara, the International Court of Justice used such a territorially based concept of “peoples.” It concluded, “the information furnished to the Court shows that at the time of colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to 145 represent them.” It was the territorial status of a people that mattered in determining whether the peoples had a right to self-determination. The Court concluded that the history and culture of a people have no legal bearing on the right to self- determination in the absence of a territorial 139 Supra, note 114. 140 Ibid. 141 International Covenant on Civil and Political Rights, adopted December 16, 1966, entered into force March 23, 1976, 999 U.N.T.S. 171. 142 International Covenant on Economic, Social and Cultural Rights ,adopted December16,1966,enteredintoforce January 3, 1976, 993 U.N.T.S. 3. 143 Supra, note 118, paras 147. 144 Supra, note 118, paras 279. 145 (1975) I.C.J Reports (Advisory Opinion of 16 October 1975) para 81. 33 connection, because such historical and ethnic characteristics have no bearing on territorial rights.146 One final question must be resolved in order to ascertain the “peoples” entitled to claim the right to self-determination granted to the peoples of Non-Self-Governing Territories. This is the nature of the links to the territory which must exist.147 Is the right available only to the indigenous population of the territory or should anyone who inhabits the territory be entitled to exercise this right? There are innumerable instances in which citizens of a colonial power or other foreigners have resided in colonies during the period of colonial rule and thereafter until self-determination has been rightfully exercised.148 In almost all instances of decolonization through a U.N. approved referendum or other process, the people entitled to vote on their future have been limited to those who have been considered the indigenous inhabitants of the territory. 149 Indeed, it would be inimical to the principle of self-determination of the peoples of colonies to permit people brought into the colony by the colonial powers to participate in the exercise of this right.150 It would be even more inimical to the principle of self-determination of the peoples of colonies to grant the right to people brought into the colony by a power occupying the colony illegally by force.151Accordingly, although there may be difficulties in describing the criteria applicable to an 152 indigenous group permitted to exercise the right to self-determination, or in ascertaining whether a particular individual actually belongs to such a group, there is usually no question that the right should be limited to legitimate members of the indigenous group unless they, themselves, wish to confer this right upon others. 2.4 Exceptions to the right of self-determination As always with regards to the development of a principle of international law, there have evolved 146 Ibid, para 66-68. 147 Supra, note 1, p. 37. 148 Ibid. 149 Ibid. 150 Ibid. 151 Ibid. 152 Ibid. 34 certain exceptions to the application of the principle of self-determination as applied to Non-Self- Governing Territories. This exceptions are based on certain principles including integration and territorial integrity.153 However, integration, as a principle of international law, has historically been deemed relevant only in the most limited circumstances, that is, to tiny territories ethnically and economically parasites of, or deriving from, that state, and that cannot be said in any legitimate sense to constitute separate territorial units.154 Thus far, four territories have been integrated with other states on grounds of national unity rather than self-determination; Goa and dependencies, and French Establishments in India (India); Ifni (Morocco); and São João Baptista de Adjudá (Dahomey, now known as the Republic of Benin).155 A far greater exception to the applicability of the right to self-determination to Non-Self- Governing Territories is posed by the countervailing principle of territorial integrity as applied to larger, potentially viable territories.156 A people‘s right to self- determination is more complicated because of the interplay with a state‘s right to territorial integrity. Both the right to self- determination and the principle of territorial integrity are foundational preemptory norms of the international legal order.157As a result, when a group of people that exists within an already established state seeks to exercise its collective right to self- determination, these two foundational principles come into direct conflict. The importance of the principle of territorial integrity is laid out in many different legal texts, including Article 2 of the United Nations Charter which provides that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Even in the context of liberation from colonialism, the principle of territorial integrity plays a role through the principle of uti possidetis juris, denying to subgroups of a Non-Self-Governing Territory the rights that are applicable to the 153 Supra, note 98, p. 38. 154 Ibid. 155 James Crawford, The Creation of states in International law (2nd edn, Oxford, Clarendon 2006) 370. 156 Supra, note, p. 39. 157 Lee Seshagiri, “Democratic Disobedience: Reconceiving Self-Determination and Secession at International Law,” 51 Harv. International Law Journal (2010) p. 567-577. 35 people as a whole.158 The principle assumes even greater importance in the context of the rights of subgroups within an already existing state. The Badinter Commission, created in 1991 to address the issues in the former Yugoslavia, emphasized that this principle applied in all contexts, holding that “whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the States concerned agree otherwise.”159 Allowing the unlimited exercise of rights of self-determination by any group that constitutes a people could potentially lead to the fracture of many states within the international community. The result was the establishment of two understandings of the right to self- determination: internal self-determination and external self-determination both of which I described earlier. Secession is described as external self-determination described by some as ‘full self- determination.’It is in fact what W. Danspeckgruber160 and M.C van Walt van Praag161 had in mind when they asserted respectively that: “No other concept is as powerful, visceral, emotional, unruly, as steep in creating aspirations and hope as self- determination” and “It [self- determination] evokes emotions, expectations and fears which often lead to conflict and bloodshed”. The first secession ever recorded in the history of humanity (bibilically speaking), was the division of the kingdom of Israel. The division was as a result of the perceived oppression by King Rehoboam and his recalcitrance in departing from the oppressive leadership style of his father- predecessor, King Solomon. The people of Israel saw secession as the only hope of survival- a last resort. In deference to the principle of territorial integrity, international law has proven resistant to 158 Supra, note, p. 39-40. 159 Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising From the Dissolution of Yugoslavia, Opinion No. 2, July 4, 1992, 31 I.L.M. 1488, 1498 (1992) (”Badinter Commission”). 160Available at http://www.unpo.org/section/2/2 (accessed on 14/7/16). 161 Malcolm Shaw, International law, (4th edn, Cambridge University Press, 1997) p. 54-98. 36 recognizing a unilateral right of secession for all peoples. 162 The general rule, according to customary international law is that, only people in a classic colonial situation or context have the right to secession by way of self- determination- “salt-water colonialism doctrine.” 163 The overriding fear is that the unilateral, unfettered exercise of self-determination on behalf of all “peoples” would lead to an unacceptable level of fragmentation and destabilization in the international system.164 As a result, international law has provided for a more limited right of internal self-determination for peoples within existing established states, where the possibility of external self-determination or secession is only available when the “group is collectively denied civil and political rights and (is) subject to egregious abuses.”165 In a widely-cited decision, the Supreme Court of Canada addressed the right of internal self-determination under international law in relation to secessionist elements in Canada‘s French-speaking province of Quebec.166 In 1995, the people of Quebec had narrowly voted in a referendum to remain in the union with Canada. The closeness of the vote led to a request for an advisory opinion from the Canadian Supreme Court to address the question of whether or not Quebec could unilaterally secede from Canada. The Court issued its opinion in 1998. The Court ruled that the right to self-determination for peoples inhabiting a recognized state must “be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states.”167 The Court did, however, recognize that “when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession.”168 Therefore there are certain, exceptions to the general rule which have also crystallized into customary international law. They include: consent of state and flagrant human rights 162 Supra, note 145, p.573. 163 Supra, note 122, p. 6. 164 Rob Dickinson, 'Twenty-First Century Self-Determination: implications of the Kosovo Status Settlement for Tibet,' 26(3), Arizona Journal of International and Comparative Law (2009), p. 547-552. 165 Milena Sterio, ‘On the Right to External Self-Determination: ‘Selfistans, Secession and the Great Powers’ Rule’ 19,International Law Journal, (2010), p.137-143. 166Supra, note 98, p. 42. 167 Secession of Quebec [1998]2S.C.R.217(Can.) Para.122. 168 Ibid, para 134. 37 violations.169 a. Consent of state The state to which a people belong may consent to the demand of that people for secession. Thus, the Arbitration Commission of the Peace Conference on Yugoslavia in Opinion No.2170 stated thus: “… it is well established that, whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis) except where the states concerned agree otherwise.” b. Flagrant/ Serious Human Rights Violations Peoples in non-colonial situations are entitled as of right to secession from the existing independent state, where they suffer flagrant/serious human rights violations including persistent oppression, annihilation/targeted killings, domination, discrimination, marginalisation, and other grave injustices in the state to which they belong.171 Thus, United Nations Resolution 2625(XXV)172 states that: “….. Nothing in the foregoing paragraph (affirming the right of self determination) shall be construed as authorizing or encouraging any action which would dismember or impair…the territorial integrity …of sovereign and independent states conducting themselves in compliance with the principle of equal rights and [internal] self- determination of peoples”. The above position has been endorsed by international legal writers and jurist. Thus the International Commission of Jurists in its report on Bangladesh’s secession in 1971 states as follows: 169 Supra, note 163. 170 Supra, note 150. 171 Supra, note 163. 172 Supra, note 106. 38 “If one constituent peoples of a state is denied equal rights and discriminated against, it is submitted that their full right of self-determination will revive.”173 The availability of external self-determination when there is evidence of oppression is based on a principle known as the remedial rights theory and has some historical precedent. Antonio Cassese 174argues that the right to external self-determination might be appropriate where the central government persistently denies a people political participatory rights, grossly and systematically violates their fundamental human rights, and denies the peaceful settlement of any disputes through the institutions of the central state. In the Åaland Islands Case,175 the inhabitants of a small island that was part of Finnish territory wished to join Sweden. Their claims were brought to the League of Nations, where the Second Commission of Rapporteurs issued an advisory opinion saying that the territorial integrity of Finland had to be respected, and that a right to secession from Finland would only exist for the Åalanders if Finland showed a manifest disrespect for the cultural and ethnic autonomy of the Åalanders.176 The African Human Rights Commission came to a similar conclusion in assessing the secessionist claims of the Katangese people. It observed that: “In the absence of concrete evidence of violations of human rights [of the Katangese] to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in Government as guaranteed by Article 13(1) of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.”177 Remedial rights theorists argue that the people seeking to exercise external self- determination must demonstrate that they are pursuing a legitimate cause: “[A] group has the right to secede (in the absence of any negotiations or constitutional provisions that establish a right) only as a remedy of last resort to escape serious 173 International Commission of Jurists, ‘East Pakistan Staff Study’, The Review (1972), no. 8, p.4 174 Antonio Cassese, International law (2nd edn, Oxford University 2005). 175 The Åaland Islands Question: Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Doc. B7/21/68/106 at 34 (1921) (“Åaland Islands Report”). 176 Supra, note 154, p. 143-144. 177 KatangesePeoples‟Congressv.Zaire, African Commission on Human and Peoples‘ Rights, Comm.No.75/92 (1995), para. 6. 39 injustices... injustices capable of generating a right to secede consist of persistent violations of human rights, including the right to participate in democratic governance, and the unjust taking of the territory in question, if that territory previously was a legitimate state or a portion of one (in which case secession is simply the taking back of what was unjustly taken).”178 Although there is no universal consensus on the extent of the violations necessary to justify a right to external self-determination (i.e., secession), there is general agreement that it is only justified in extreme cases where “definite and substantial grievances” are present and “all other (means of resolving these grievances) have been exhausted or repudiated.”179 As such, in evaluating any claim of secession, the test of whether the secessionist claims are justified should look to the “the nature and extent of the deprivation of human rights of the subgroup claiming the right.”180 178 Allen Buchanan “Democracy and Secession,” in Secession and National Self-Determination, M. Moore (ed.), (Oxford University Press, 1998). 179 Supra, note 98, p. 47. 180 V. P. Nanda, ―Self-Determination Outside The Colonial Context: The Birth Of Bangladesh In Retrospect, in SELF-DETERMINATION: NATIONAL, REGIONAL AND GLOBAL DIMENSIONS 193, 204 (Yonah Alexander & Robert. A. Friedlander eds. Westview Press 1980). 40 CHAPTER THREE UN EFFORTS IN THE DECOLONIZATION OF WESTERN SAHARA 3.1 Introduction The previous chapter emphasized the importance of the right to self-determination. A number of difficult issues arose, especially with regard to external self-determination and when exactly the people of a particular territory are entitled to it. An issue also arose with regard to the application of the right to self-determination to Non- Self- Governing Territories. The African Union which previously operated as the Organization of African Unity(OAU) and the United Nations in a bid to take hold of the security situation in Western Sahara have, as a result of the pressure highlighted in chapter 2, undertaken various mechanisms, to help handle issues of insecurity in Western Sahara. This chapter discusses the various efforts taken by the United Nations to cub the insecurity in Western Sahara. The chapter also seeks to answer the third and fourth research questions as posed in Chapter 1, regarding the role of the United Nations and the OAU in the decolonization of Western Sahara. 3.2 Historical Background a. Pre-Spanish era 41 Modern day Western Sahara comprises a land mass of approximately 103,000 square miles, about the size of the U.S. state of Colorado, consisting mainly of rocky desert flatlands, with few natural harbors, hazardous coastal waters, and with its major river, the Saguia el-Hamra, flowing seasonally to the Atlantic across the northern part of the territory.181 The geographical limits of present day Western Sahara extend 660 miles along the Atlantic, with borders of 276 miles with Morocco to the north, 25 miles with Algeria in the northeast, and 976 miles with Mauritania to the east and south.182 Western Sahara‘s natural resources consist mainly of phosphate deposits (used for commercial fertilizer but valued in particular for its uranium content), coastal fisheries, and more recently recognized, potential off-shore oil and gas reserves.183 The indigenous inhabitants are a people of mixed Arab-Berber heritage called Sahrawis, who trace their lineage to semi- nomadic tribes which settled in the region centuries before there were modern day “states” in North Africa and migrated within loosely defined and often overlapping territories throughout the region.184 The arrival of Islam in the eighth and ninth centuries saw the conversion of most of the inhabitants of the region, including the Sahrawis, and the rise of the influence of succeeding Sultans, who could trace their lineage directly to Mohammed, in present day Morocco. 185 It also saw the emergence of a trade route between the sub-Saharan traders of central and west Africa and the Sultans and Mediterranean Arab settlements through North Africa.186 According to various scholars, by the arrival of the first Spanish and Portuguese explorers and traders on the African coast in the fifteenth century, the Sahrawi tribes had adopted their own language, Hassaniya, a dialect of Arabic, and the Europeans found these tribes of goat and sheep 181 Supra, note 98, p. 3. 182 Ibid. 183 Ibid. 184 Ibid. 185 Ibid. 186 Ibid. 42 herders living their nomadic existence in much the same way as they had for centuries.187 By this period, the Canary Islands had become an important trading center for Spain, and the Spanish began to cast their eyes upon the African coast.188 In 1476, a small Spanish fort was established at Santa Cruz de Mar Pequeña189 opposite the Canaries, but it was sacked in 1524, and the Spanish were not to establish another settlement on this coast until more than three and a half centuries later in 1884. At the end of the nineteenth century, with European colonization advancing in Africa, Spain turned its attention once again to the Saharan coast, there being “... fears in Madrid that France, England or some other European powers might secure control of this coast so close to the Canaries.”190 In the 1870s, Spanish public support for Spanish colonial ventures in Africa grew, with expectations of commercial rewards from trade and exploitation of fishing resources.191 “So, by 1884, there was a formidable interlocking nexus of business interests and Africanist propagandists who… could bring considerable pressure to bear on the Spanish government. Meanwhile, the Congress of Berlin was laying down the ground rules for the division of Africa.”192 In 1884 Emil Bonelli, under the auspices of the Spanish Sociadad de Africanistas y Colonistas (Society of Africanists and Colonialists) signed a treaty with certain nomadic tribes, giving over to the Spanish “... the territory called Madibu or Cape Blanc on the coast, so that this territory finds itself under the protection and government of His Majesty the King of Spain, Don Alfonso XII.” 193 In 1885, Spain placed the entire coast between Cape Blanc and Bojador under the administrative responsibility of its overseas ministry, thus complying with Article 35 of the General Act of the Congress of Berlin, held in February 2nd , 1885 requiring “colonial powers to 187 Ibid, p. 4. 188 Ibid. 189 Tony Hodges, Western Sahara: The Roots of a Desert War (1st edn, Laurence Hill 1984) 20. 190 Ibid, p.40. 191 Supra, note 98, p. 5 192 Supra, note 189, p. 42. 193 Ibid. 43 establish an effective administration of their colonies ...” 194 In 1887, by decree, the area of the protectorate was extended 150 miles into the interior, while putting it under the administration of the “politico-military sub-governor.”195 From 1887 on, Spain‘s success in administering what was then known as the Spanish Sahara was very modest at best. Constantly harassed by groups of Sahrawis resisting the domination of the region by the Spanish and French, the Spanish remained content to limit their control to the coastal settlements until the mid-1930s. 196The fall of the Spanish monarchy and the ensuing Spanish civil war “left almost no mark” on Western Sahara.197 The territory remained a Spanish colony, but Spanish rule waned with the general political developments and decolonization that followed World War II. In the 1950s and 60s the colonies of North Africa began one by one to assert their independence. Morocco gained its independence from France in 1956, followed by Mauritania in 1960 and, after a long and bloody war, Algeria in 1962.198 In order to forestall a similar movement in Spanish Sahara, in 1958 Spain, under the leadership of General Franco, designated Spanish Sahara a “province.”199 Spain's decision in 1958 to turn Western Sahara into a Spanish province with its own legislation and general assembly, known as Djemaa, transformed the territory into a purportedly autonomous entity where the local population would gradually take control of managing its own affairs.200 The ploy of designating the territory a Spanish “province” did little to discourage the calls within the international community for self-determination for the people of the region, and in 1963 Spanish Sahara was placed on the U.N.‘s list of “Non-Self-Governing Territories.”201By 1966, Western Sahara remained the only “Non-Self-Governing Territory” left in the region, and both the United Nations and the Organization of African Unity (now the African Union) began to exert 194 Ibid, p. 43. 195 Ibid. 196 Supra, note 98, p. 6. 197 Supra, note 189, p. 68. 198 Supra, note 196. 199 Ibid. 200 Diego Aguirre, José Ramon, Historia del Sahara Español, (Madrid: Kayededa 1988). 201 Ibid, p. 7. 44 considerable pressure on Spain to withdraw from the territory and permit the native inhabitants to determine their political future through a referendum.202 The evolution of the Sahrawi indigenous population from the nomadic to the 'modern' era reinforced the sense of belonging to a larger community that went beyond traditional kinship ties.203 The incipient Sahrawi national consciousness was initially translated into demand for greater political participation in the affairs of the territory, and then developed into renewed anti- colonial sentiments creating the conditions for the emergence of the first Sahrawi movement with a strongly nationalist direction. 204 It was in this context that Harakat Tahrir ('Liberation Movement') was established in the late 1960s by a group of Sahrawi nationalists.205 Unlike the past forms of Sahrawi resistance, Harakat Tahrir was the first urban-based Sahrawi political movement. It pressed for greater social and economic reforms and demanded the decolonization of the territory.206 Although the movement was crushed by the colonial authorities in 1970, it paved the way for the re-emergence of Sahrawi nationalism in a more organized and vigorous form.207 The emblematic moment of this historical process was the creation of the Frente popular para la Liberación de Saguiat El Hamra y de Rio de Oro (or 'the Frente POLISARIO' as it is better known) as a liberation movement with the declared objective to use armed struggle to achieve independence from colonial domination. 208 The movement immediately gained overwhelming support among the Sahrawi population and was later recognized as the sole and legitimate representative of the Sahrawi people.209 The Frente Polisario declared a rejection of the tribal allegiances of old and the aim of establishing 202 United Nations Resolution on the Question of Ifni and Spanish Sahara,2229 (XXI), 2O December 1966, UN Doc. (A/RES/2229(XXI). 203 Supra, note 14, p.45. 204 Ibid. 205 Ibid. 206 Ibid. 207 Ibid. 208 Ibid. 209 Ibid. 45 a union of all Saharans in a modern day “state.”210 Spain finally succumbed to the pressures exerted by the liberation movement within the territory and the international community. In August of 1974, eight years after first being urged to do so by the U.N. General Assembly, the Spanish government announced that it would hold a referendum on independence in Western Sahara under U.N. auspices during the first six months of 1975.211 However, Morocco and Mauritania, which had asserted claims to the territory based upon alleged ties between the inhabitants of the region and their countries prior to the Spanish colonization, requested that the international community postpone the referendum while they had their claims adjudicated by the International Court of Justice.212 Algeria, which also bordered the territory, viewed their demands with suspicion, as it also had a long-running rivalry with Morocco. After arguing for a process of decolonization to be guided by the United Nations, the Algerian government under Houari Boumédiènne in 1975 committed to assisting the Polisario Front, which opposed both Moroccan and Mauritanian claims and demanded full independence of Western Sahara.213 The UN attempted to settle these disputes through a visiting mission in late 1975, as well as a verdict from the International Court of Justice (ICJ).214 It acknowledged that Western Sahara had historical links with Morocco and Mauritania, but the population of this territory possessed the right of self-determination.215 On 6 November 1975 Morocco initiated the Green March into Western Sahara; 350,000 unarmed Moroccans invaded Western Sahara from the north.216 In the waning days of General Franco's rule, and after the Green March, the Spanish government signed a tripartite agreement with Morocco and Mauritania as it moved to transfer the territory on 210 Manifeste politique, adopte par le deuxieme congres, in Le peuple Saharoui en lutte (Polisario Front, 1975) at 50; cited in supra, note 189, p. 163. 211 Letter dated August 20, 1974 from the Permanent Representative of Spain to the United Nations to the Secretary- General, U.N. Doc. A/9714. 212 Supra, note 98, p. 8. 213 Wikipedia, 'Western Sahara' (Wikipedia, 15 July 2016) www.wikipedia.org (accessed 20 July 2016). 214 Ibid. 215 Ibid. 216 Ibid. 46 14 November 1975.217 The accords were based on a bipartite administration, and Morocco and Mauritania each moved to annex the territories, with Morocco taking control of the northern two- thirds of Western Sahara as its Southern Provinces, and Mauritania taking control of the southern third as Tiris al-Gharbiyya. 218 Spain terminated its colonial administration of the territory in 1976.219 Though it failed to fulfil its responsibilities in decolonizing it in line with the wishes of its indigenous population, it nevertheless created the conditions and structures on which a common sociopolitical and national Sahrawi entity would be founded.220 First, Spain delimited the borders of the territory through a series of international agreements - borders that the Organization of African Unity (OAU) maintained in line with the principle of intangibility of frontiers inherited from the colonial era.221 Second, it contributed, through its colonial policy, to the emergence of a relatively homogeneous demographic community united and conscious of its own distinctive self: the Sahrawi people.222 It was in this context that the Frente POLISARIO proclaimed the Sahrawi Arab Democratic Republic (SADR) on 27 February 1976.223 The SADR is now a full member of the African Union and is recognized by more than 80 countries.224 Its creation has undoubtedly contributed to deepening the Sahrawi population's sense of their collective identity. The new state structures and symbolic representations have been instrumental in promoting and normalizing a distinct Sahrawi national identity.225 In view of the foregoing analysis of self-determination and the formative stages of the Sahrawi collective identity, it could be concluded that it was logical for 217 Ibid. 218 Ibid. 219 Wikipedia, 'Western Sahara Conflict' (Wikipedia, 1 June 2016) www.wikipedia.org (accessed 20 July 2016). 220 Supra, note 203. 221 Ibid. 222 Ibid. 223 Supra, note 220. 224 Supra, note 203. 225 Ruiz Miguel Carlos, SAHARA OCCIDENTAL Y ESPAÑA: HISTORIA, POLÍTICA Y DERECHO (Editorial Dykinson , Madrid 1995) 47 the UN to affirm the applicability of the right of self-determination to the indigenous people of Western Sahara and set in motion a process to decolonize the territory.226 3.3 Moroccan claims to Spanish Sahara. A brief exploration of the history of the region shows that since the 7th century until 1727 Western Sahara has had some kind of relationship to Moroccan rulers, sometimes in full and otherwise partially. Morocco’s goal was to bring back the territory of the great Morocco back under control thus, since its independence in 1956 from the French “protectorate”, 227 “Our independence will only be complete with the Sahara!” shouted Allal el-Fassi, leader of the Istiqlal Party, in 1956.228 The Istiqlal party of Morocco advanced the theory of “Greater Morocco,” that the borders of Morocco should rightfully include all the lands that were under the dominion of the Sultans of Morocco prior to the Western colonization of the region.229 The supporters of this theory claimed that these lands encompassed, besides Spanish Sahara, all of Mauritania and a large slice of Algeria.230 Although they backed a number of United Nations Resolutions calling for the self-determination of the people of the region during the 1960s and 1970s, 231they never renounced this claim. They also laid claim to what is present day Mauritania, and Morocco tried, unsuccessfully, for a year after its independence from France in 1960 to block its admittance to the U.N. as an independent state. 232 In addition, Morocco inaugurated in the late 1960s an unsuccessful bid to occupy part of Algeria by force,233 leading to friction between the two states 226 Ibid. 227 Yousef El miadi, 'The Morocco, Western Sahara conflict - Contextuality and intrests' (Academia, 2014) King Hassan’s claim over Spanish Sahara were deemed null by the ICJ on October 16, 1974. Spanish officials also rejected Morocco’s claims to the territory and persuaded the United Nations to launch a fact-finding mission to canvass the opinions of the Sahrawi people regarding their desire for independence or annexation by Morocco.235 The UN mission was greeted by crowds “who made it noisily clear that they wanted independence,” 236 causing the UN to rule in favor of Spanish Sahara’s independence on October 15, 1975. On the day after the publication of the Mission‘s report, the International Court of Justice rendered its opinion.237 The question referred to the Court was to determine whether the territory, prior to the Spanish colonization, was terra nullius, or without legal tie to a sovereign, or whether such ties existed, and if they existed, whether such titles vested in either Morocco or Mauritania, or both.238 After an examination of evidence of political, military, religious, and economic ties between the claimants and the inhabitants of the territory before Spain‘s arrival, the judges found that “the information before the Court does not support Morocco‘s claim to have exercised territorial sovereignty over Western Sahara.”239 The Court explained that while the evidence showed that the Sultan exercised “some authority” over “some, but only some,” of the nomadic tribes of the region, it “does not establish any tie of territorial sovereignty between Western Sahara and that State. It does not show that 234 Ibid, p. 101. 235 Supra, note 35. 236 CR Pennell, Morocco since 1830 (Newyork University Press 2000) 338. 237 Supra, note 65. 238 Ibid. 239 Ibid, p. 48 49 Morocco displayed effective and exclusive State activity in the Western Sahara.”240 The Court‘s response to Mauritania‘s claim was essentially the same.241 King Hassan, in obvious disagreement with the rulings of the United Nations, responded by launching the “Green March”; the green march is a massive protest from North, East and west towards the South.242 The green march was a massive demonstration of over 350,000 Moroccans who advanced into the Western Sahara, holding Qurans and Moroccan flags, escorted by about 20,000 militia from “les Forces Armées Royal”, royal armed forces troops in November 6 1975.243 That same day, Morocco informed Spain that the march into Western Sahara would continue unless Spain agreed to bilateral negotiations concerning a transfer of sovereignty over Western Sahara to Morocco.244 In reality, Moroccan troops had already entered the territory by the time of the Green March and the first armed conflict between these troops and the Polisario occurred on October 31, 1975, near the outposts of Jdiriya, Haousa and Farsia near the border with Algeria, abandoned days prior by Spanish troops.245 The march was successful as it caught Spain by surprise during a time when Franco, the dictator general who ruled Spain for over 40 years was dying and Spain feared a political crisis.246 They responded to both; the UN general assembly calls for independence and to the voices of thousands of Moroccans who claimed brotherhood.247 On November 14, the governments of Morocco, Mauritania and Spain issued a joint communique, notifying the world of certain agreements – later called the “Madrid Accords” – that had been reached as a result of negotiations on the Western Sahara issue.248 According to the communiqué, Spain had agreed to a “temporary” joint administration of the territory with Morocco and 240 Ibid, p. 49. 241 Ibid, p. 68. 242 Supra, note 227. 243 Ibid. 244 R. T. Vance, “Recognition as an Affirmative Step in the Decolonization Process: The Case of Western Sahara” 7 Yale Journal of World Public Order 58 (1980-1981). 245 Supra, note 189, p. 220. 246 Supra, note 227. 247 Ibid. 248 Declaration of Principles on Western Sahara by Spain, Morocco and Mauritania, Annex II to U.N. Doc. S/11880, November 19, 1987, in Security Council Official Records, 30th Year, Supplement for October, November and December 1975, p. 41. 50 Mauritania, in consultation with the djemma, the Spanish-appointed council of Sahrawi tribal elders.249 By the end of February 1976, Spain would withdraw completely and there was no mention of what would take place at that time. Following the issuance of the Madrid Accords, the infiltration into the territory of Moroccan and Mauritanian troops intensified and within weeks the major towns of the territory were encircled.250The annexation of administration was resisted by the POLISARIO and soon after a war erupted between Morocco, Mauritania and the POLISARIO, which resulted in the exile of the POLISARIO to the refugee camps of Tindof and Mauritania’s withdrawal because of the POLISARIO pressure and bombardments in its capital, Nouakchott.251 Morocco took control over pushing the rebellions towards Tindof in Algeria and later on built the separation wall that is called “the wall of shame” it is approximately 2700 km long, secured by mines and guards of about 10,000. 3.4 The conflict begins As discussed above it is clearly seen that the conflict escalated after the withdrawal of Spain in accordance with the Madrid Accords. Thousands of Sahrawi citizens began to flee the cities and towns of the territory to avoid the advancing Moroccan and Mauritanian armies.252 The Polisario eventually convinced Algeria to permit the civilians to locate in refugee camps in Algeria,253 where many of them remain to this day. Throughout this period, the indigenous population of Western Sahara had never been given a voice in any of the discussions at the United Nations or in the case before the International Court of Justice. The Sahrawis were not accorded the right to be heard by the International Court of Justice, which can only receive evidence from “states” and “international organizations.”254By the time of the Green March, however, the Polisario had won the diplomatic support of a number of 249 Supra, note 98, p. 13 250 Ibid. 251 Supra, note 227. 252 Supra, note 78, p. 694-695. 253 Ibid. 254 Supra, note 98, p.13. 51 key African states, most prominently among them Algeria. Algeria, which shares a twenty-five mile border with Western Sahara, had become alarmed by King Hassan II‘s decision to launch the Green March and by his reassertion of the principle of “Greater Morocco” a principle which had already led to bloodshed between the two countries.255 By the end of 1975, Algeria had begun aiding the Polisario and voicing strong opposition to Moroccan policy.256 Libya, too, denounced the Moroccan move and championed the right of Sahrawi self-determination.257 The elderly tribal leaders of the djemm258a, rather than acquiesce in the Madrid Accords, voted to dissolve the council and on February 27, 1976, one day after the formal termination of the Spanish administration pursuant to the Madrid Accords, the Polisario announced the formation of the Saharan Arab Democratic Republic (“SADR”).259 Morocco refused to recognize the legitimacy of the SADR or to negotiate at all with the group. Rather, it accused the Polisario of being a group of “communist sympathizers”260 who were mere pawns of Algeria. From the beginning of the conflict until the present day, Morocco has maintained the position that this dispute is really between itself and Algeria, who has been supporting the Polisario, militarily, economically and politically, for its own political aims.261 The war between the Polisario, Morocco and Mauritania dragged on for several years. Finally, in 1979, Mauritania agreed to withdraw from the territory and renounce its claims. The Polisario, which by that time controlled more than one-third of the territory, was able to direct its full force against Moroccan troops both within Western Sahara and in Morocco itself. Morocco, aided by the United States262 and France, stemmed the Polsario‘s advances somewhat but was not able to win a decisive battle against them. In 1988, the war between the Polisario and Morocco reached a 255 Ibid. 256 Letter Dated November 19, 1975 from the Representative of Algeria to the Secretary-General, U.N. Doc. S/11881, November 19, 1975, Cited in Supra, note 189, p. 225. 257 Supra, note 254. 258 Supra, note 189, p. 234-235. 259 Tami Hultman, ‘‘Background to a Desert War,’’ Africa Today 21, no. 1 (January 1977) 71. 260 Supra, note 189, p. 201. 261 Supra, note 98, p. 14. 262 U.N. General Assembly, Special Committee Records, 1337th Meeting, August 9, 1988, pps. 2-16, report from John Zindar, Center for Defense Information. See also supra note 189, p. 358-359. 52 stalemate.263 Later that year, the United Nations and the OAU persuaded the parties to agree to a cease-fire and a plan, known as the Settlement Plan.264 At the time, most of the Western Sahara territory remained under Moroccan control, while the Polisario controlled some 20% of the territory in its capacity as the Sahrawi Arab Democratic Republic, with additional pockets of control in the Sahrawi refugee camps along the Algerian border.265 3.3 Efforts made by the UN and OAU a. Introduction While the conflict raged on throughout the 1980s, organizations such as the United Nations and the Organization of African Unity (OAU) made efforts in attempting to negotiate a ceasefire and peace agreement between the two parties. Before, the UN, the OrganizatIon of African Unity (OAU) had tried to resolve the Western Sahara dispute. The UN’s involvement in the Western Sahara issue started on December 16, 1965, when the General Assembly adopted its first resolution on what was then called Spanish Sahara, requesting Spain to “take all necessary measures” to decolonize the territory, while entering into negotiations on “problems relating to sovereignty.”266 Between 1966 and 1973 the General Assembly adopted seven more resolutions on the territory, all of which reiterated the need to hold a referendum on self-determination.267 Thus, the UN stated in unambiguous terms from the start that the Western Sahara conflict could be 263 Alex Chitty, 'The Territorial Dispute in Western Sahara' (Exploring Geopolitics) 264 Ibid. 265 Supra, note 219. 266 Anna Theofilopoulou,”Special Report on the United Nations and Western Sahara: A never ending affair,” July 2006, https://www.usip.org (accessed on 15 August 2016) 2. 267 Ibid 53 resolved only through an act of self-determination.268This position has been maintained by the organization up to the present day.269 When Spain announced plans to hold a referendum in early 1975, King Hassan II of Morocco announced that Morocco could not accept a referendum that included the option of independence and proposed arbitration by the International Court of Justice (ICJ) to decide the precolonial legal status of the territory. The ICJ found no evidence “of any legal tie of territorial sovereignty” between Western Sahara and Morocco but “indication of a legal tie of allegiance between the [Moroccan] Sultan and some of the tribes of the territory.” The ICJ concluded that these ties did not affect the decolonization of Western Sahara or the principle of self-determination. The day after the publication of the court’s opinion, King Hassan called for the “Green March,” in which 350,000 unarmed civilians crossed from Morocco into the territory to press Morocco’s claim to it. b. The UN Settlement Plan In 1979 the U.N. General Assembly recognized POLISARIO as the representative of the Sahrawi people.270 In July 1980, the question of the SADR's admission as a member of the OAU was raised, while in November 1980, the U.N. General Assembly urged Morocco to begin negotiations with POLISARIO.271 In June 1981, responding to a nudge from the U.S. and France, and because he feared the possible admission of the SADR to the OAU, King Hassan reversed his position on holding a referendum and declared at the OAU Summit in Nairobi that he would accept "a controlled referendum whose modalities should give justice simultaneously to the objectives of the 268 Ibid p. 2-3. 269 Ibid p.3. 270 United Nations General Assembly Resolution on Alternative approaches and ways and means within the United Nations system for improvising the effective enjoyment of human rights and fundamental freedoms, 23 November 1979, UN Doc. A/34/46 at 203-04. 271 G.A. Res. 19, U.N. GAOR, 35th Sess., Supp. No. 48, at 213-14, U.N. Doc. A/35/48 (1980). 54 [OAU's] ad hoc committee, that is to say the committee of wise men, and to Morocco's conviction regarding the legitimacy of its rights.”272 The King never had any serious intention of allowing the holding of a referendum that he might lose.273 In fact, upon his return to Morocco he stated unambiguously that, "I see the referendum as an act of confirmation" and made it explicit that he rejected the idea that POLISARIO was party to the conflict by declaring that, "For me, the parties interested in the Saharan affair remain Morocco, Algeria, and Mauritania, to the exclusion of Polisario, which has never existed for the African community." 274 In August 1981, an eight-point resolution regarding the implementation of a referendum in Western Sahara was adopted following the OAU's Nairobi summit. 275 An Implementation Committee, composed of African heads of state was mandated to take, with the participation of the United Nations, all necessary measures to guarantee the exercise of a general and regular referendum on self-determination by the people of Western Sahara.276 To this effect, an immediate ceasefire was to be observed,277 and a peacekeeping force was to be provided jointly by the U.N. and the OAU, which would then be stationed in Western Sahara to guarantee security during the referendum and supervise the ceasefire. 278 In pursuance of its mandate, the Implementation Committee determined inter alia that the troops in the conflict would be confined to their bases,279 those Sahrawis eligible to vote would be those listed in the 1974 Spanish census 272 Supra, note 189: See also Anthony Pazzanita,” The Proposed Referendum in the Western Sahara: Background, Developments, and Prospects,” in Zoubir Yahia H. and Daniel Volman , International; Dimensions of the Western Sahara Conflict (London: Praeger 1993) 195. 273 Yahia H. Zoubir, “The Western Sahara conflict: A case study in failure of prenegotiation and prolongation of conflict,” 26 Californian Western International Law Journal 12 (1996). 274Roland Delcour, Le refdrendum peut 6tre organisi en trois ou quatre mois, declare le roi Hassan 11, LE MONDE, July 4, 1981, 6. 275 Resolution by the nineteenth Assembly of Heads of State and Government, Res.103, June 24-27 1981, reprinted in U.N. Doc. A/36/534, annex II. 276 Ibid 7. 277 Ibid 4. 278 Ibid 6. 279 Decision of the OA U Implementation Committee on Western Sahara, IMP.C. Dec. 1, 1st Ord. Sess., Nairobi, Aug. 24-26, 1981, (c)(III), reprinted in U.N. Doc. A/36/512, annex (S/14692) (1981) [hereinafter Decision of the Implementation Committee]. 55 and relevant UNHCR documents,280 the choice offered to the Sahrawis would be independence or integration with Morocco, 281 votes would be cast by secret ballot, 282 and the Implementation Committee would establish an impartial administrative authority headed by a commissioner which would cooperate with local administrative structures, the OAU, and the U.N., to organize the referendum.283 The OAU resolutions reflected a compromise between the positions of Morocco (no recognition of POLISARIO, no negotiations with them, and no withdrawal of Morocco's troops or administration) and of Algeria (a genuinely free referendum, an interim administration, and a peacekeeping force).284 Although it has been argued that these resolutions constituted a good basis for a referendum,285 one might also say that what prevented progress toward a referendum was the exclusion by Morocco of POLISARIO as an independent actor, treating it simply as an agent of Algeria. 286 The OAU's Implementation Committee sought not to aggravate Morocco's sensitivity on the issue of recognition of its adversary. Therefore, although it knew well who the warring parties were, the Committee decided not to name them, thus failing to get them to negotiate, even indirectly.287 This situation was interpreted as victory by the Moroccans. POLISARIO and Algeria responded by pushing successfully on February 22, 1982 for the admission of the SADR to the OAU.288 The actual admission of the SADR was followed in June 1983 by a resolution of the Assembly of 280 Ibid (a)(III). 281 Ibid (a)(V). 282 Ibid (a)(IV). 283 Ibid (b). 284 Supra, note 273, p. 13. 285 William Zartman, Ripe for Resolution: Conflict and Intervention in Africa (Updated edn, Oxford University Press 1989) 91-92. 286 Supra, note 284. 287 Supra, note 279. 288 Supra, note 189, p. 314-315. 56 Heads of State and Government, which exorted Morocco and the POLISARIO, the two parties to the conflict- To undertake direct negotiations with a view to bringing about a cease-fire to create the necessary conditions for a peaceful and fair referendum of self-determination of the people of Western Sahara, a referendum without any administrative or military constraints, under the auspieces of the Organization of African Unity and the United Nations.289 The target date for the referendum was December 1983.290 Through Saudi mediation, a meeting took place between Bendjedid and King Hassan on February 26, 1983, four months before the OAU resolution was adopted.291 The meeting did little to resolve the conflict because both maintained their respective positions. 292 According to Zartman, however, aides of the two heads of state discussed a possible compromise on Western Sahara which might be reached before the upcoming OAU meeting in Addis Ababa and thus constitute the basis of an OAU resolution.293 In essence, the deal was that Morocco would agree to have a direct meeting with POLISARIO representatives, and in exchange, Algeria would enjoin POLISARIO not to seek OAU membership, but to push, instead, for an early referendum; "Autonomy, federation, and other outcomes less than independence were discussed." 294 However, Bendjedid Chadli said he would "spare no effort" to reconcile Morocco and the Saharawis.295 By March 1983, Algeria had already signed with Tunisia the Treaty of Fraternity and Concord, which Mauritania adhered to in December the same year, in the hope that Maghrebi unity would create a framework for a definitive resolution of the Western Sahara conflict.296 The year 1984 was a crucial year in the development of the conflict in Western Sahara. At the OAU 289Resolution by the nineteenth Assembly of Heads of State and Government, Res. 104, June 6-12 1983, reprinted in U.N. Doc. A/38/312 (1983). 290 Anthony Pazzanita & Tony Hodges, Historical Dictionary of Western Sahara (2 edn, The Scarecrow Press Inc., 1994). 291 Morocco-Algeria Meeting, WASH. POST, Feb. 27, 1983, at A18 292 Supra, note 273, p. 15. 293 Supra, note 285, p. 57. 294 Ibid. 295 Supra, note 273, p.17. 296 Supra, note 293, 171-172. 57 Twentieth Summit held in November, the SADR finally took its seat as the fifty-first member of the organization with little opposition.297 This, however, led to the withdrawal of Morocco, an important and founding member of the organization.298 The immediate result of such a decision was the absence from the OAU of one of the two parties to the dispute. This episode also marked the end of the handling of the Western Sahara conflict by the OAU and its displacement to the United Nations.299 In September 1985, the Non-Aligned Movement (NAM) adopted a resolution which supported the OAU's Resolution AHG 104 by endorsing its call for direct negotiations. 300 Worse still for Morocco, two months earlier, in July, Mohamed Abdelaziz, the SADR's president, had been elected one of the OAU's vice presidents. King Hassan, accusing the OAU of partiality, decided that the Western Sahara dossier be handled by the United Nations.301 But, clearly, the U.N. arena, especially the General Assembly, was more favorable to the SADR than the Moroccan authorities anticipated, for the notion of direct negotiations between the belligerents, as sought by Algeria and the SADR, appealed to the majority of the members. Even if the question of Western Sahara had not been an important item on the organization's agenda since 1975-76, many resolutions had reaffirmed the "Sahrawis' inalienable right to self-determination and to independence" and that only negotiations between the two parties would create the objective conditions for a return to peace in the region and for a fair and regular referendum.302 The U.N, however, despite Morocco's attempts to avoid the necessity of direct negotiations, gave its unequivocal support to the OAU's plan for direct negotiations, a cease-fire, an interim administration in the occupied territory, and a 297 Supra, note 273, p.18. 298 Ibid. 299 Ibid. 300 OAU- AHG Resolution on the Pleace Plan on Western Sahara, 6-12 June 1983, AHG/Res. 104(XIX). 301 Abdelkhaleq Berramdane, “Le Sahara Occidental enjeu maghrébin'” 28(1) Canadian Journal of African Studies 93 (1994). 302 Supra, note 273, p. 18 58 referendum in the Western Sahara "without any administrative or military constraints under the auspices of the Organization of the African Unity and the United Nations.”303 In August 1988, the UN delivered to the parties the settlement proposals.304 This plan involved the establishment of a ceasefire between Polisario and Moroccan forces, the withdrawal or containment to designated areas of all troops, the creation of MINURSO (Mission des Nations unies pour l’organisation d’un referendum au Sahara occidental), the establishment of a voter Identification Commission and an agreement to hold a referendum on the question of Sahrawi self-determination, 24 weeks after the entire process had begun.305 The UN settlement proposals of 1988 were almost identical to those originally made by the OAU. A breakthrough was made in August 1988 when both Polisario and the government of Morocco agreed ‘in principle’ to a joint OAU-UN ceasefire.306 The Security Council unanimously approved this plan and established MINURSO through resolution 690 on April 29, 1991307 consisting of civilian, military and police components. The mission was successful in brokering a ceasefire which was to take effect September 6, 1991 and set the referendum to take place in late January of 1992.308 Both Polisario and Morocco had agreed that the results of the 1974 Spanish census would be used to identify who would be permitted to 303 United Nations General Assembly Resolution on the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples by the specialized agencies and the international institutions associated with the United Nations, 2 December 1985, UN Doc. A/RES/40/85 p. 268-269. 304 Supra, note 35. 305 Yahia. H Zoubir and K. Pazzanita, Anthony G, “The United Narions’ Failure in Resolving the Western Sahara Conflict,” 49(4) The Middle East Journal, (1995). 306 WilliamJ Durch, United Nations Mission for the Referendum in Western Sahara. in WilliamJ Durch (ed), Evolution of Peacekeeping: Case Studies and Comparative Analysis (New York: St Martin's Press 1993) 411. See also Yahia H. Zoubir and K. Benabdallah-Gambeir, “ Morocco, Western Sahara and the Future of the Maghrib,” 9(1) Journal of North African Studies, 49-77 (2004). 307 United Nations Security Council Resolution 690, 29 April 1991, UN Doc. S/RES/690. 308 Ibid: See also, Supra, note 268. 59 vote in the referendum, which essentially limited the voters to about 74,000 indigenous Sahrawis who had been residing in Western Sahara when it still been under Spanish rule.309 Initially, the plan established a ceasefire to be followed by an exchange of prisoners of war, a reduction of Moroccan forces in the territory, and confinement of combatants of both sides to specific locations.310 Following the proclamation of an amnesty, Saharan political prisoners would be released. All laws and regulations that might impede the holding of a free and fair referendum would be suspended, as deemed necessary. 311 Following the promulgation of a general and complete amnesty, refugees and others outside the territory who wished to return could do so, after the UN established their right to vote.312 A special representative would be appointed by the secretary-general and would have sole and exclusive authority over all matters related to the organization and holding of the referendum, including MINURSO.313 To ensure that the necessary conditions existed for the holding of a free and fair referendum, the UN would monitor other aspects of the administration of the territory, especially the maintenance of law and order.314 The Settlement Plan stipulated that the full support of the Security Council, the cooperation of the parties, and that of the neighboring countries were essential for MINURSO to carry out its responsibilities effectively and with complete impartiality.315 In addition to observing the cease- fire, MINURSO’s main responsibility has been the identification of potential voters for the referendum, which was completed in December 1999. 316 MINURSO also has been directly 309 Barbara Mundy, The Mapping of New Spain: Indigenous Cartography and the maps of the Relaciones Geograficas (Chicago: University of Chicago Press 1996) 29. 310 Report of the Secretary General on the situation concerning Western Sahara, 17 February 2000, https://www.arso.org (accessed on 16 August 2016). 311 Ibid. 312 Supra, note 310. 313 Ibid. 314 Ibid. 315 Ibid. 316 Ibid, p. 3-4. 60 involved in implementing confidence-building measures, including family visits between the Western Saharan population in the territory and the refugee camps in Algeria.317 The acceptance of and commitment to the peace proposal, however, did not mean an end to the conflict. 318 In September 1988, POLISARIO armed forces launched several attacks against Moroccan positions. 319 Their objective was clearly to demonstrate that POLISARIO was an independent force to be reckoned with and that Moroccan dialogue, if not negotiations, with POLISARIO was as important as with Algiers.320 Therefore, from POLISARIO's point of view, direct negotiations were a necessary condition for a genuine peace process. 321 Although they rejected POLISARIO's view on direct negotiations, Moroccans came to accept their opponent as a reality. They no longer blamed Algeria for POLISARIO attacks on Morocco.322 Moroccans still believed that negotiations were unnecessary and that sooner or later the Sahrawi cause would die a natural death.323 This is why they thought that the mere acceptance of holding a referendum in Western Sahara would satisfy Algeria's leaders and would make it easier for its neighbor to eventually drop the issue altogether.324 Efforts to Implement the Settlement Plan The period from early 1992 to the middle of 1996 was spent trying to start and move forward the identification of voters for the referendum.325 There was little or no effort to implement other elements of the plan because it was recognized that unless the differences of the parties over the 317 Ibid, p. 4. 318 Supra, note 273, p. 24. 319 Edward Cody, “Western Sahara War Nears an End; Morocco, Guerrillas Agree to Peace Plan,” WASH. POST, 25 September 1988, Al. 320 Supra, note 273, p. 25. 321 Ibid. 322 Ibid. 323 Ibid. 324 Ibid. 325Supra, note 266, p. 4. 61 identification process were resolved, none of the remaining tasks would be accomplished.326 The identification of potential voters for the referendum was finally launched on August 28, 1994.327 It was a thorough and painstaking process based on the 1993 compromise proposal of the secretary- general, which had not been wholeheartedly accepted by either party.328 Sheikhs, one from each side, played a key role in the process by testifying about the identity of members of their groups.329 Applicants were expected to prove that they qualified to register to vote by satisfying one of five criteria.330 Morocco found some of the provisions too restrictive in that Saharans who had fled the territory into Morocco during the Spanish colonial period and were not present during the 1974 Spanish census would have to prove that they were real Saharans in order to vote.331 For this, they would depend on the concurrence of the Polisario sheikh.332 The Polisario, on the other hand, considered the Spanish census the sole framework for the identification and the proposal too inclusive because two of the criteria would allow non-Saharans to be included on the voters list.333 Due to the parties’ mistrust of each other, and to some extent their mistrust of MINURSO, the procedures developed were based on complete reciprocity. 334 Both parties found reasons to interrupt and slow down the process, the main one being the unavailability of sheikhs or party representatives for the identification.335 At the deadline for the receipt of applications, Morocco had submitted a total of 181,000 (100,000 from applicants living in Morocco) and the Polisario 39,000.336 Another 10,000 application forms had been collected by MINURSO in Mauritania. MINURSO was expected to identify 233,000 applicants.337 The Polisario resented what it saw as a Moroccan ploy to flood the identification process with Moroccans and feared that MINURSO 326 Ibid. 327Ibid. 328 Ibid. 329 Ibid. 330 Ibid. 331 Ibid. 332 Ibid. 333 Ibid. 334 Ibid. 335 Erik Jensen, Western Sahara: Anatomy of a Stalemate (Lynne Rienner Publishers 2005) 73. 336 Supra, note 329. 337 Ibid. 62 would register the majority of them.338 It therefore found reasons not to bring its sheikhs on time (although at times there were legitimate logistical reasons), thereby delaying the process.339 It questioned the integrity and transparency of the identification process and managed to influence some Security Council members. Although both parties found ways to interrupt the process, during the period from 1992 to 1996, the Polisario was the more obstructionist of the two, stopping the identification often and openly questioning MINURSO’s integrity.340 Morocco, on the other hand, hoping that the sheer number of its applicants would help it win the referendum, appeared keener to get on with the process during that period and even managed to seem cooperative, as long as it did not feel that its interests were being threatened.341 In order to deal with the interruptions and delays, MINURSO would come up with technical solutions to resolve the problem at hand and get the parties to resume their cooperation.342 In 1995, the Security Council got involved in the identification process and became polarized, with some members joining the Polisario in accusing MINURSO and the Secretariat of lacking transparency.343 Using information supplied to them by the Polisario, they even challenged the technical procedures devised by MINURSO to resolve the deadlocks created by the parties and started micromanaging the process.344 The United States in 1993 had created the Group of Friends of Western Sahara to facilitate MINURSO’s efforts to implement the settlement plan.345 Until 1995, the group had managed to keep a more or less balanced approach due to its composition. While France and Spain were sympathetic to Morocco and the Polisario, respectively, the United Kingdom and the United States were more balanced and nuanced in their relations with both 338 Ibid. 339 Supra, note 339. 340 Ibid. 341 Ibid. 342 Ibid. 343 Ibid. 344 Ibid. 345 Ibid. 63 parties.346 After 1995, however, when some unelected members were invited to join the group to make it more representative of the Council’s composition, the dynamics within both the group and the Council changed, creating a further obstacle to a speedy resolution of the conflict.347 In June 1995, after seeing the identification process stall, the Security Council sent a special mission to the region to assess the situation and help resolve some of the problems.348 The special mission came back confident that MINURSO was doing a credible job. Rather than helping, however, the mission had some inadvertent adverse consequences. It raised the stakes by reminding the parties that they had to make difficult decisions to advance the process. There followed a cessation of the identification process, primarily because of the Polisario’s refusal to participate in the identification of the contested groupings. The Council lost its patience with the parties after the visit and in May 1996, for the first time, passed a resolution349 mentioning MINURSO’s possible withdrawal. From the start of the consultations on the settlement plan, the issue of direct talks between the two parties had been raised many times. The UN was in favor of the Polisario’s wish, also supported by Algeria, to meet face to face with high-level Moroccan officials.350 The ostensible reason for this was to discuss “postreferendum arrangements” because the settlement plan was silent on what would happen after the vote.351 The unspoken but real hope of the UN, and of the Polisario at that time, was that the parties would come to an understanding on something between integration and independence before the referendum. 352 However, whenever the issue of talks came up, the Polisario leaders publicly brought up the notion of independence, which elicited an automatic termination of the contacts by the Moroccans.353 Morocco maintained that there was no need to discuss the settlement plan’s implementation because that was the UN’s job. If the Polisario 346 Ibid. 347 Ibid. 348 Supra, note 339, p. 78. 349 United Nations Security Council Resolution 1017, 22 September 1995, UN Doc. S/RES/1017. 350 Supra, note 266, p. 5. 351 Ibid. 352 Ibid. 353 Ibid. 64 wished to discuss arrangements in the event of integration, Morocco would be willing to meet.354 This, however, did not stop the UN and others from trying to organize direct talks between the parties, hoping that such talks might open the way to a solution. In his December 15, 1995, briefing to the Security Council, Secretary-General Boutros-Ghali admitted that although he had hoped that the identification would be completed, he had not expected the referendum to take place due to the irreconcilable positions of the two parties.355 He had hoped, however, that after completing the identification process, based on the figures, the parties would start direct negotiations.356 In his January 1996 report, while not openly advocating direct talks, the secretary-general expressed for the first time his availability to facilitate contacts between the parties, should they decide to establish a direct dialogue.357 The next resolution358 adopted by the Council included code language about direct talks. In the spring of 1996, the United States made a discreet effort to organize direct talks between the parties.359 This attempt failed because the Polisario would not agree to the precondition that there be no mention of independence.360 In his May 1996 report to the Security Council, the secretary-general proposed the suspension of the identification process, the withdrawal of police, and a reduction in MINURSO’s military presence.361 The Council approved the proposals. 362 In the summer of 1996, Acting Special Representative (ASRSG) Eric Jensen, capitalizing on both sides fear that unless some progress could be demonstrated MINURSO’s mission would be further scaled down or terminated, convinced the two parties to meet directly.363 The first condition by 354 Ibid. 355 Ibid. 356 Ibid. 357 Report of the Secretary- General, S/1996/43 (19 January 1996) para 6. 358 United Nations General Assembly Resolution on the Question of Western Sahara, 19 December 1995, UN Doc. A/RES/50/36. 359 Supra, note 355. 360 Ibid. 361 Ibid. 362 Ibid. 363 Ibid. 65 Morocco was for absolute secrecy.364 The agenda would be open-ended and anything could be discussed except “independence” or “integration.”365 There were two meetings, the first in Geneva to lay out the plans for the second, which was to be held in Rabat. The Polisario wanted the king or the crown prince and the ASRSG to attend366. Morocco agreed to the meeting with the crown prince but not to the ASRSG’s presence.367 A large Polisario delegation represented all points of view, including hardliners. On the Moroccan side were the crown prince and the interior minister. In the second meeting the Polisario brought up the question of independence.368 The Moroccan condition for a third meeting was that there would be no talk of independence.369 The Polisario wanted another location, a third party present, and no preconditions about the subject. In the end, there was no third meeting.370 The Security Council extended MINURSO’s mandate until May 1997371 and everybody settled down to await the new secretary-general. c. Change of leadership: enter James A. Baker, Personal Envoy As soon as Kofi Annan assumed his post, he reviewed all UN operations.372 Western Sahara was foremost among those qualifying for deep scrutiny due to the effort and resources that had gone into it for the past six years, with the cease-fire being the only tangible result. He asked for an assessment paper with policy options for his consideration. The paper, which was discussed in a policy meeting, presented the following four options: (a) retain the settlement plan and move ahead with its implementation, (b) put the plan aside and seek a “third solution,” (c) seek a “third solution” while keeping the plan, (d) disengage until the time was “ripe.” 373 The meeting immediately focused on option b. The previous summer’s attempts at direct talks had indicated that the parties were fairly shaken by the suspension of the identification and the reduction in 364 Ibid. 365 Ibid. 366 Ibid. 367 Ibid. 368 Ibid. 369 Ibid. 370 Ibid. 371 United Nations Security Council Resolution 1042, 31 January 1996, UN Doc. S/RES/1042. 372 Ibid. 373 Ibid. 66 MINURSO’s military strength and might be amenable to a mediator who would steer them toward a political solution.374 It was decided that a high-level U.S. envoy would be the most suitable mediator because the United States had not been advocating on behalf of either side and was therefore trusted by both. Former U.S. Secretary of State James A. Baker III was proposed by the secretary-general himself.375He was the task of re-assessing the possibility of holding a referendum376 or, better yet, to see if a political compromise could be reached regarding an autonomy agreement, steering both parties away from a “winner-take-all” approach.377 However, Baker found that both Polisario and King Hassan were still in favor of a referendum and he managed to successfully broker the Houston Agreements which got the referendum process back on track.378 Unfortunately, Baker’s initial success was short-lived as following the Identification Commission’s completion of identifying voters in 1999, Morocco appealed close to 79,000 of the voters who were deemed ineligible to vote, essentially forcing the Identification Commission to re-start its entire voter identification process.379 Baker’s visit to the region from April 8 to 11, 2000, did not yield anything new.380 He invited the parties to meet with him three times in 2000. Nothing positive came from the first two meetings.381 Baker pointed out the differences in their positions regarding implementation of the settlement plan and invited them to come forward with concrete solutions to the plan’s multiple 374 Ibid. 375 Ibid. 376 Teresa Whitefield, Friends Indeed?: The United Nations, Groups of Friends, and the Resolution of Conflict (US Institute of Peace Press 2007); See also Yahia H. Zoubir 1998 in International Relations of the Western Sahara conflict In L’Ouest saharien: Etat des lieux et materiaux de recherche’The Western Sahara: Status of Studies and Research Materials, edited by P.Boiley, E. Martinoli and A.O. Yara, 127- 140. Paria: Harmattan. 377 Supra, note 266; See also, Jacob A. Mundy, “ Siezed of the Matter: The UN and Western Sahara Dispute,”Mediterranean Quaterly 131-132 (2004). 378 Charles Dunbar, “Saharan Statis: Status and Future Prospects of the Western Sahara Conflict” 54(4) The Middle East Journal (2000). 379 Supra, note 35. 380 Supra, note 266, p. 9. 381 Ibid. 67 problems.382 His assessment was that the parties’ views and behavior were still widely divergent and had not moved any closer despite their professed desire and willingness to cooperate with the UN. He broached the idea of a political solution other than the settlement plan.383 The breakthrough that everybody had been waiting for came at the third meeting in Berlin on September 28, 2000.384 After denouncing the way the settlement plan was being implemented, the head of the Moroccan delegation stated that Morocco was ready to initiate a sincere and frank dialogue to work out a lasting and definitive solution to the Western Sahara issue, which should take account of Morocco’s sovereignty and territorial integrity, in accordance with democratic and decentralization principles.385 The Polisario rejected the proposal outright and said that it would only engage in a dialogue about implementation of the settlement plan. Pointing out that nobody was abandoning the plan, Baker invited Morocco to offer some devolution of governmental authority for discussion.386 At the same time, Morocco was warned that if it did not come up with such an offer soon, MINURSO would start preparing for the appeals process.387 By that time, Baker had determined that Morocco had no desire to proceed with the appeals, notwithstanding its statements to the contrary. He was using the prospect of proceeding with the appeals and by extension the implementation of the settlement plan to press Morocco.388 D. The Political Solution The Security Council was informed of Morocco’s intention to offer devolution of authority in Western Sahara. When by April 2001 Morocco still had not given Baker a document that would sufficiently devolve power to the Saharans, he prepared the draft Framework Agreement (FA) on 382 Ibid. 383 Ibid. 384 Ibid. 385 Ibid. 386 Supra, note 383. 387 Supra, note 386. 388 Ibid. 68 the Status of Western Sahara. 389 The Moroccan king approved the document. 390 Baker then traveled to Algiers and Tindouf to present the draft FA to Algerian and Polisario leaders. The Algerian leadership was noncommittal but promised to get back to him.391 The Polisario secretary- general was unwilling to discuss anything that did not include independence as an option and declined even to keep a copy of the draft FA.392 The draft FA was meant to be negotiated by the parties to provide a five-year period of autonomy for Western Sahara.393 It offered exclusive competence over local governmental administration, territorial budget and taxation, law enforcement, internal security, social welfare, culture, education, commerce, transportation, agriculture, mining, fisheries and industry, environmental policy, housing and urban development, water and electricity, roads, and other basic infrastructure to the population of Western Sahara. 394 The government of Morocco would have exclusive competence over foreign relations; national security and external defense; all matters relating to the production, sale, ownership, or use of weapons or explosives; and preservation of territorial integrity against secessionist attempts. 395 The flag, currency, customs, postal, and telecommunication systems of the kingdom would be the same for Western Sahara. 396 The population of Western Sahara would exercise authority through an executive elected by those whose names were on the UN provisional voter list without giving effect to any appeals or other objections and through an assembly elected by voters who were either on the UNHCR repatriation list or continuous residents of the territory since October 31, 1998.397 The FA did not spell out the 389 Yahia Zoubir, 'Western Sahara Deadlock' (Middle East Research and Information Project, 2016) 390 Supra, note 386. 391 Ibid. 392 Ibid. 393 Ibid. 394 Ibid. 395 Ibid. 396 Ibid. 397 Ibid. 69 options for the final status of Western Sahara, but provided for a referendum on the status of the territory after five years.398 Baker thought that the Polisario candidate could win the election for executive and thus be in a position to run the broad range of functions.399 It was hoped that this would appeal to the Polisario as affording it a chance to prove itself and perhaps be in a position to win the referendum.400 Algeria sent a memorandum highly critical of the draft FA, complaining that (a) the document prepared the ground for eventual integration of the territory with Morocco; (b) it went against the principle of self-determination; and (c) Baker had not followed his mandate, which required him to work on implementing the settlement plan as well as a political solution.401 The Polisario sent three sets of official proposals to overcome obstacles preventing the implementation of the settlement plan, but which either (a) offered concessions that had conditions attached; (b) required Security Council action; or (c) were imprecise and required further clarification.402 Baker briefed the Security Council on the draft FA.403 The resolution adopted by the Council encouraged the parties to discuss the draft FA, negotiate any specific changes to it, and discuss any other proposals for a political solution to arrive at a mutually acceptable agreement.404 Algeria, Mauritania and the Polisario were invited to meet with Baker from August 27 to 29, 2001.405 The Algerians reiterated general views without engaging in specifics but promised to send specific clarifications later.406 The Polisario also was reluctant to engage in specifics.407 The Mauritanians promised to support any solution that would promote peace and stability in the 398 Ibid. 399 Ibid. 400 Ibid. 401 Ibid. 402 Ibid. 403 Ibid. 404 United Nations Security Council Resolution 1359, 29 June 2001, UN Doc. S/2001/641. 405 Supra, note 386. 406 Ibid. 407 Ibid. 70 region. The Polisario categorically rejected the draft FA.408 The difficulties ahead became more obvious after the visit of President Bouteflika to the Baker Institute, where he informed Baker that Algeria and the Polisario would be prepared to discuss a division of the territory.409 Subsequently, Baker visited Morocco to inform the government of the Algerian suggestion. 410 He had two meetings with the king and his advisers. In the second meeting the king informed Baker that Morocco would not contemplate a division of the territory.411 Since no early, durable, and mutually agreed resolution of the dispute could be reached by consensus, four choices were presented to the Council as ways of resolving the conflict:412 (1) implement the settlement plan without the parties’ concurrence; (2) ask Baker to revise the draft FA taking into account the parties’ concerns and submit that revision to the Council for presentation to the parties on a nonnegotiable basis; (3) explore with the parties the possibility of dividing the territory; in the event that they were unwilling or unable to agree on such a division, ask Baker to make a proposal to the Security Council, which would present it to the parties on a nonnegotiable basis; (4) terminate MINURSO. The Security Council spent the first half of 2002 trying to decide how to handle the four options. 413 The positions of the parties were as follows: 414 Morocco did not like any option (because of the nonconsensual approach), but if pressed, it would accept option two (draft FA). The Polisario favored the first option (settlement plan) but could accept option three (division). It rejected option two. Algeria called option two “dead on arrival” and supported option three, calling it a compromise. There was no agreement about any option except the last one; nobody 408 Western sahara news, 'Marocleaks : Moroccan arguments to justify its coloniwation of Western Sahara' (Western Sahara News, May) Council.416 Baker prepared the “Peace Plan for Self-Determination for the People of Western Sahara.”417 While Morocco would be responsible for issues pertaining to the responsibilities of a state, the peace plan all but ensured that the Western Sahara Authority would have complete and exclusive responsibility for the day-to-day governing of the territory for four years.418 The peace plan was much more detailed than the draft FA. While the overall areas of responsibility remained the same, the new document differed from the previous one in several key areas.419 The most significant were that (a) the electoral body for the referendum for the final status of the territory would be composed of those on the UN provisional voter list and those on the UNHCR repatriation list, plus those who could prove continuous residence in the territory since December 30, 1999 and (b) the peace plan included the questions on the ballot for the final referendum. Baker visited the region in early January 2003 and presented the peace plan to the parties. Regardless of these attemps by Baker’s to level the playing field and give both sides the chance to win the referendum, the plan was greeted with reservations by Morocco and completely rejected by Polisario.420 The Moroccan response was characterized by a sense of entitlement and reluctance to compromise its belief that it had sovereignty rights over Western Sahara (referring to the “country’s southern provinces”) and the need for a political solution to depart “from the winner- take-all” mentality of the settlement plan Morocco wanted Baker to reestablish the architecture of 415 United Nations Security Council Resolution 1429, 30 July 2002, UN Doc. S/RES/1429. 416 Supra, note 386. 417 Ibid. 418 Ibid. 419 “Peace plan for Sahara: Baker’s plan II” http://www.mission-maroc.ch (accessed on 22 August 2016). 420 Supra, note 266, p.11. 72 the Framework Agreement, which did not include the referendum options set out in the peace plan.421 Algeria took an overall favorable stance toward the document. It identified the positive elements of the proposal and offered suggestions for additions or changes it said would clarify and facilitate implementation of the document.422 The peace plan and the parties’ responses were submitted to the Security Council. Things took a turn for the unexpected on July 11, 2003 when the Polisario accepted the plan.423In July 2003, the UN Security Council endorsed the plan in resolution 1495, something that it had not done with Baker's first draft, and unanimously called for the parties to implement it.424 Morocco, however, then rejected the plan, saying that it would no longer agree to any referendum that included independence as an option.425 After the adoption of the resolution, Morocco was given some time to reflect. In December 2003, Morocco presented a counterproposal to Baker, “the draft Autonomy Status.”426 In Morocco’s view, the document would “enable the Saharan population to manage its own affairs freely, democratically, and in full respect of the sovereignty of the Kingdom of Morocco, its territorial integrity, and its national unity.”427 Certain elements of the Moroccan counterproposal constituted a dramatic reversal of the peace plan, a key one being that it did not include independence as an option for the final status of the territory, simply offering autonomy to the “Sahara Autonomous Region.” 428Morocco did not allow for much of a UN role during the transitional period, other than a vague reference to support by UNHCR and the UN in keeping with their respective mandates.429 421 Ibid, p.12. 422 Ibid. 423 Ibid. 424 United Nations Security Council Resolution 1495, 31 July 2003, UN Doc. S/RES/1495. 425 Wikipedia, 'Baker Plan' (Wikipedia, 6 August 2016) www.wikipedia.org (accessed 22 August 2016). 426 Anna Theofilopoulou, 'Western Sahara - How to Create a Stalemate' (United States Institute of Peace: Making peace possible, 1st May) Most important, there was no mention of self-determination.430 The proposal assigned all security, public order, and criminal procedure functions to Morocco and forbade any secessionist attempts. Baker and some of his staff worked to get Morocco to modify its proposal. 431The Moroccan second attempt was no more successful than the first. As before, there was no option of independence in the referendum and Morocco was keeping all law enforcement functions.432 Aware that such a proposal could not serve as the basis for discussion with Algeria and the Polisario, Baker asked Morocco to try again, pointing out the areas where changes were needed. When Morocco responded for the final time to Baker, it did not attempt to meet any of his requirements.433 Resolution 1541,434 adopted by the Security Council on April 29, 2004, was a regression from resolution 1495. The April 2004 resolution reaffirmed the Council’s support for the plan, but it also strongly supported a mutually acceptable political solution. By that time there had been a change in the bilateral relations with and support of key member states for Morocco.435 Spain, an elected member of the Security Council at the time, had a new government that hoped to improve its relations with Morocco. 436 There was renewed concern within the U.S. government about international terrorism, and Morocco’s help was deemed essential. France was continuing its policy of strong support for Morocco. The end result was weakened support for the peace plan437. Unable to achieve full-fledged support for the implementation of the peace plan from either of the parties or the UN Security Council, Baker announced his resignation on June 1, 2004, believing that he had done all he could to resolve the Western Sahara conflict.438 Polisario saw Baker’s 430 Ibid. 431 Ibid. 432 Ibid. 433 Ibid. 434 United Nations Security Council Resolution 1541, 29 April 2004, UN Doc. S/RES/1541. 435 Supra, note 434. 436 Ibid. 437 Ibid. 438 Ibid. 74 resignation as a major setback while Morocco “held up Baker’s resignation as a trophy” and attributed it to the “tenacity of Moroccan diplomacy.”439 After Baker’s resignation, Alvaro de Soto, special representative for Western Sahara at the time, was asked to assume peacemaking duties. Following de Soto’s appointment as United Nations envoy for the Middle East in August 2005, and Algeria’s refusal to work with him Ambassador Peter van Walsum was appointed as personal envoy. 440 Throughout this period, the parties’ positions have remained exactly as they were at the time of Baker’s resignation.441 The Polisario, supported by Algeria, maintains that the peace plan remains on the table as the only option with the full support of the Security Council. Morocco continues talking about its offer of autonomy under Moroccan sovereignty, which it has yet to present. Both sides expect the personal envoy to work towards implementation of their position.442 Conclusion By assuming responsibility for resolving the Western Sahara conflict, the UN interjected itself into what was clearly an impossible situation. Both parties were determined to win the referendum under the UN Settlement Plan and had a strategy for doing so. Despite the tremendous difficulties from the start in reconciling the parties’ positions, the prevailing attitude among those working on the issue was to keep going, overcoming one difficulty after another in the identification process, in the hope that eventually the parties would be forced into agreeing to a solution. MINURSO and the Secretariat’s are responsible for the lack of progress in resolving the conflict, however one cannot ignore the Security Council. Its micromanagement of the conflict and the partisan positions taken by some of its permanent and elected members contributed to the lack of progress in 439 Supra, note 382. 440 Supra, note 414. 441 Supra, note 442. 442 Ibid. 75 resolving the conflict and the eventual resignation of Baker. On several occasions, Council members acted as spokesmen for one or the other party. The result was that the Council often did not speak with one voice and diluted or clouded its resolutions for the sake of reaching consensus. Western Sahara will remain on the UN agenda for many years to come. Already the situation has gone on for fifteen years and has cost over $600 million. 76 CHAPTER FOUR THE RIGHT TO SELF-DETERMINATION OF THE PEOPLE OF WESTERN SAHARA UNDER PRINCIPLES OF INTERNATIONAL LAW 4.1 Introduction In chapter 2 we defined the right to self-determination, the people entitled to invoke that right and the exceptions to that right. We also emphasized that the implementation of this right will be fundamental in providing a viable and lasting solution to the conflict in Western Sahara. In this chapter we are going to discuss the right to self-determination as applied specifically to the situation in Western Sahara. Moreover, we are going to answer the second and fifth research questions on the legitimacy of the Moroccan claims to the territory of Western Sahara and the options available for the Sahrawi to enable them to realize the right to self-determination respectively. 4.2 77