Modern International Legal History of the Conflict Over the Western Sahara

6 MODERN INTERNATIONAL LEGAL HISTORY OF THE CONFLICT OVER THE WESTERN SAHARA CASE STUDY II-PART 1 INTRODUCTION The Western Sahara is that fringe of the Saharan Desert that is on the coast of the African continent. It includes the areas of Saguiet el-Hamra in the north and Wadi ed Dahab (Rio de Oro) in the south, a total area of 284,000 kilo metres. It shares borders with Morocco in the north and Mauritania in the south with a small common border with Algeria. As in the case of most African coun tries the borders of the state were agreed to and drawn by the colonial powers France and Spain that ruled the region. Agreements between the two powers signed in 1900, 1904 and 19121 gave the territory of the Western Sahara its current shape. 2 The region is of particular interest to international lawyers studying self-determination and the decolonisation process. As established ear lier, the current status of international law with respect to self-determination suggests that it is only valid in situations of 'salt-water' colonialism.3 The Western Sahara is an interesting case since the colonial issue has never been resolved despite the active interest of the international community. A colony of Spain at the time of the decolonisation process, the area, known as the See the Treaty of Fes, 1912 also Rezette R., The Western Sahara and the Frontiers of Morocco (1975) pp. 91-111. 2 For an in-depth discussion of the process leading up to this see generally Rezette, R., (1975) infra n.1. Also see Hodges, T., The Roots ofa Desert War(l987); Shaw, M., 'The Western Sahara Case' in 44 BJIL (1978) pp. 118-154; Franck, T., 'The Stealing of the Sahara' in 70 AJIL (1976) pp. 694-721; Lawless & Monahan (eds.) War & Refugees ( 1987); Price, D.L., The Western Sahara ( 1979); Woolman, D.S. Rebels in the Rif( 1969); Abun-Nasr, A., History ofthe Maghrib ( 1975); Thompson & Aldoff The Western Saharans ( 1980); Mercer, J. The Saharawis of the Western Sahara ( 1979) & Chopra, J., UN Determination of the Western Sahara Self (1994). 3 See Chapter Two Section 2.4. 174 Chapter 6: Case study II - part I Spanish Sahara, was entitled to exercise the right of self-determination in the same way as other post-colonial entities in the region and around the rest of the world.4 However with the national interests of three powers clashing, com pounded by the fact that the actual residents of the region were a nomadic popu lation, the situation has thus far evaded resolution. Spain as the colonial ruler was responsible for the smooth transition of the region from its own administra tion to that of the people of the area - a requirement under the UN charter which Spain is obliged to respect.5 However the Saharawis have traditionally been nomads who have wandered across the region that included Morocco and Mauri tania for centuries without having to worry about borders.6 The straight-jacket ing of interests within the discourse of statehood and sovereignty has forced a change in this life-style. As a result they, like other nomadic peoples such as the gypsies in Central Europe and the travellers in the Republic of Ireland,7 have been forced into an area that corresponds to a sovereign 'state'. However what really brings the issue to an impasse is the intricacy of the history and identities within the region, and the rival claims of Morocco and Mauritania (which has since been dropped) to the region that corresponds the Western Sa hara. As early as 1966 Mauritania and Morocco both newly independent, called for the self-determination of the region of Western Sahara.8 Both countries were certain that exercise of the right of self-determination would see the region being amalgamated into their respective states. This claim is not as surprising and irredentist as it might first seem, in view of the fact that the people of the region had traversed across the territories that corresponds to both the modern day states throughout their history.9 This, when super-imposed upon the concept of a 'greater Maghreb identity', examined in the next chapter, throws up com plications which serve to reduce the right of self-determination to one easily manipulated by the harnessing of shrewd political forces. These political claims arising out of specific perceptions of historic identity, are compounded by the concept of the 'prize' of the Western Sahara, which some authors claim is the 4 See generally, Sureda R., Evolution of the Norm of Self-determination ( 1973). 5 See Chapter XI of the UN Charter esp. article 73. 6 See Abun-Nasr (1975) op.cit.2 pp. 202-224. 7 See generally, Farnham, R., Gypsies, Tinkers & Other Travellers (1975); Acton, T., Gypsy Politics & Traveller Identity ( 1997). 8 Franck (1976) op.cit. 2, p. 694. 9 See Chapter Seven Section 7 .1. .

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