The Legal Issues Involved In The Western Sahara Dispute The Principle of Self-Determination and the Legal Claims of Morocco COMMITTEE ON THE UNITED NATIONS JUNE 2012 NEW YORK CITY BAR ASSOCIATION 42 WEST 44TH STREET, NEW YORK, NY 10036 THE LEGAL ISSUES INVOLVED IN THE WESTERN SAHARA DISPUTE THE PRINCIPLE OF SELF-DETERMINATION Table of Contents Contents Page PART I: FACTUAL BACKGROUND....................................................................................... 3 PART II: ENTITLEMENT OF THE PEOPLE OF WESTERN SAHARA TO SELF- DETERMINATION UNDER INTERNATIONAL LAW ........................................................... 22 I. THE RIGHT TO SELF-DETERMINATION UNDER INTERNATIONAL LAW: GENERAL PRINCIPLES ............................................................................................................ 22 A. Historical Development of the Right to Self-Determination ................................................ 23 B. The United Nations Charter and Non-Self-Governing Territories ....................................... 26 C. Status of Right as Customary Law and a Peremptory Norm ................................................ 27 D. People Entitled to Invoke the Right ...................................................................................... 32 E. Geographic Boundaries on the Right to Self-Determination ................................................ 34 F. Exceptions to the Right to Self-Determination ..................................................................... 38 II. THE COUNTERVAILING RIGHT TO TERRITORIAL INTEGRITY ............................. 39 A. The Principle of Territorial Integrity As Applied to the Rights of Subgroups of an Existing State ……………………………………………………………………………………………..39 B. The Doctrine of Historic Ties to Support a Claim to Territory under the Right to Territorial Integrity ......................................................................................................................................... 48 C. Other Bases for Acquiring Territory Subject to the Right of Territorial Integrity ............... 51 III. CONCLUSION .................................................................................................................. 57 PART III: APPLICATION OF THE RIGHT TO SELF- DETERMINATION: GENERAL PRINCIPLES ................................................................................................................................ 59 I. RESPONSIBILITIES OF ADMINISTERING POWERS ................................................... 60 II. OPTIONS AVAILABLE TO NON-SELF-GOVERNING TERRITORIES ....................... 61 III. PROCESS FOR EXERCISING SELF-DETERMINATION ............................................ 67 A. The Precedent of Referendums in Exercising Self-Determination ....................................... 68 B. Achieving Self-Determination Through Non-Classical Means ............................................ 71 IV. CONCLUSION .................................................................................................................. 72 PART IV: APPLICATION OF PRINCIPLES OF INTERNATIONAL LAW TO THE DISPUTE OVER WESTERN SAHARA ..................................................................................... 73 i I. THE RIGHT TO SELF-DETERMINATION OF THE PEOPLE OF WESTERN SAHARA UNDER PRINCIPLES OF INTERNATIONAL LAW ................................................................ 73 A. Western Sahara Retains Its Status as a Non-Self-Governing Territory ................................ 73 B. There are No Legitimate Claims of Morocco that Would Abridge the Peoples‘ Right to Self- Determination ............................................................................................................................... 76 II. THE INTERNATIONAL LEGAL STANDARDS UNDER WHICH THE PEOPLES OF WESTERN SAHARA SHOULD EXERCISE THEIR RIGHT TO SELF-DETERMINATION 93 A. The Peoples Entitled to Exercise the Right to Self-Determination Are the Indigenous People of the Territory, the Sahrawis ....................................................................................................... 93 B. The Political Options That Must Be Available to the Peoples of Western Sahara ............... 95 C. The Necessity of Ascertaining the Freely Expressed Will of the People ............................. 95 CONCLUSION ............................................................................................................................. 97 RECOMMENDATIONS 98 ii INTRODUCTION Western Sahara, known as Spanish Sahara when it was a colony of Spain, is a territory roughly the size of Colorado situated between Morocco to the north, Mauritania to the south, and Algeria to the east. It is mostly desert and the ancestral home of nomadic tribes. For more than thirty years, sovereignty over this territory has been in dispute and the process of its decolonization has raised serious implications for the application of principles of international law and United States policy. In 1975, Spain agreed to withdraw from the territory and permit Morocco and Mauritania to occupy it, igniting a war between those two countries and members of the native population, called Sahrawis, led by an independence movement called the Polisario Front, or ―Polisario,‖ that persisted until Mauritania withdrew its forces from the territory in 1979 and Morocco agreed to a cease-fire agreement in 1991. Under this cease-fire agreement, known as the ―Settlement Plan,‖ sovereignty over the territory would be determined by a referendum conducted under the auspices of the United Nations and the African Union. By the time of the cease-fire agreement, Morocco was in control of approximately two-thirds of the territory and the Polisario controlled the other third. For reasons that will be discussed later in this report, this referendum has not yet taken place and sovereignty over the area remains in dispute. Three years ago, the United Nations Committee of the Association of the Bar of the City of New York (the ―Committee‖) began a study of the legal issues involved in the dispute over Western Sahara in order to give United States policy makers some guidance on these issues when framing their policies towards the dispute. In April 2011, the Committee issued its first report, addressing whether Morocco has a right under international law to utilize the natural resources of the portion of Western Sahara it controls pending a resolution of sovereignty over 1 the territory.1 The present report addresses the issue of sovereignty itself, in particular, by examining the claims to self-determination of the peoples of Western Sahara and the territorial claims of Morocco under principles of international law. The report will refer to ―Sahrawi Arab Democratic Republic‖ or the abbreviated form ―SADR‖ as well as to the Polisario. The Polisario is an independence movement and political organization of Sahrawis who have advocated for the independence of Western Sahara since the Spanish occupation of the territory and whom the United Nations recognized as the representative of the people of Western Sahara in 1979.2 The SADR is the government formed by the Polisario in 1976, currently headquartered in Tindouf, Algeria; it claims to be the government in exile of an independent Western Sahara. The United Nations, the United States and the League of Arab States do not recognize the SADR as the government of an independent state; however, the SADR is a member of the African Union and has been recognized as the government of an independent state by that organization and by approximately one-third of the world‘s countries. The report‘s use of Sahrawi Arab Democratic Republic or SADR does not reflect any position on the part of the Association of the Bar of the City of New York on whether or not this entity is, or should be recognized as, the government of an independent state. 1 Report on Legal Issues Involved in the Western Sahara Dispute: Legal Status of Morocco‘s Use of the Natural Resources of Western Sahara, Association of the Bar of the City of New York, April 2011. 2 See G.A. Res. 34/37, 34 U.S. GAOR, Supp. (No. 46) 203, U.N. Doc. A/34/46 (1979). 2 PART I: FACTUAL BACKGROUND3 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. 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. 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. 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. 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