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The Western Sahara Conflict in Light of Its International Law Implications

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The Western Sahara Conflict in Light of Its International Law Implications Dipartimento di Scienze Politiche Cattedra di International Law The Western Sahara Conflict in Light of its International Law Implications Prof. Roberto Virzo Lucrezia Ducci – Matr. 082312 ________________ _________________________ RELATORE CANDIDATO Anno Accademico 2018/2019 - 1 - To my Mom, to whom I owe everything, with heartfelt gratitude. To all the extraordinary women that I was lucky enough to meet in Morocco, never stop fighting for freedom. - 2 - Table of Contents 1 The Background of the conflict in Western Sahara………………………………………………… 4 1.1 The prehistory of Western Sahara and the passage from fragmentation to the Saharawi people….. 5 1.2 The region before colonization: the arrival of the Arabs……………………………………………6 1.2.1 The influence of the sultanate in the region………………………………………………………… 7 1.3 The Spanish colonization……………………………………………………………………………8 1.3.1 The terrae nullius issue………………………………………………………………………………….10 1.4 Natural resources of the territory…..………………………………………………………………..12 2 The conflict and its management……………………………………………………………………...15 2.1 The origins of the conflict: from decolonization to foreign occupation…………………………….15 2.2 The conflict management process: United Nations intervention……………………………………16 2.2.1 The Madrid Accords and their legal value…………………………………………………………..18 2.2.2 From the formation of the SADR to the construction of the walls…………………………………19 2.3 MINURSO…………………………………………………………………………………………..22 2.3.1 The impasse……………………………………………………………………………………………….24 3 International law’s implications……………………………………………………………………….27 3.1 The principle of self-determination…………………………………………………………………27 3.1.1 The internal dimension of the principle………………………………………………………………30 3.1.2 The external dimension of the principle………………………………………………………………32 3.2 Territorial integrity and secession in international law……………………………………………..33 3.3 Minority rights and the ‘safeguard clause’………………………………………………………….34 3.4 The doctrine of uti possidetis………………………………………………………………………………...36 4 The application of international law to the context of Western Sahara……………………………..38 4.1 The right to self-determination of the Saharawi people………………………………………………39 4.2 The pursue of economic development and sovereignty over natural resources………………………41 4.2.1 The obligation to not support a State impeding self-determination………………………………..44 4.3 Why the conflict is still unsolved?........................................................................................................46 4.3.1 The international effects of the Western Sahara Conflict…………………………………………….47 Conclusion…………………………………………………………………………………………………..49 Bibliography…………………………………………………………………………………………………50 Riassunto…………..…………………………………………………………………………………………54 - 3 - 1 The background of the conflict in Western Sahara Western Sahara is a 266000 km2 wide territory of Northwestern Africa, overlooking the Atlantic Ocean and including a vast, almost entirely desert, inland. On the political level, Western Sahara is currently the largest non-autonomous territory in the world1: its Atlantic extremity, situated on the border between Morocco, Mauritania and Algeria, represents a vast territory of war. The conflict has been going on for over forty years and seems to have been forgotten by the world public opinion. Currently, the parties in the dispute are the State of Morocco and the frente Polisario; but the history of the litigation has undergone several passages over the years and has had several different protagonists. In the course of this analysis concerning the implications of international law in the conflict, we will see the different steps that led to the current situation and we will evaluate the interests at stake. The attractiveness of the territory, in fact, lies in the presence of mineral resources along the coasts; especially phosphates2. Simplifying the succession of events, which will be explored later, it is possible to divide the background of the dispute into three historical periods. The first goes from prehistory until the arrival of the Arabs and sees the territory being inhabited by nomadic populations which will merge, in a second period, with tribes of Arab origin, thus giving rise to what would later become the Saharawi people. In a third period, beginning in the fifteenth century, Spain has established agreements with the chiefs of the tribes born from the fusion between nomads and Arabs, for the purpose of making the territory a Spanish colony. From the Berlin conference (1884-1885) onwards, Western Sahara formally becomes a Spanish colony, thus taking the name of Spanish Sahara. The real dispute begins before the end of decolonization, in 1975, with the Green March: a strategic mass demonstration organized and implemented by Morocco to gain control over the territory. Following decolonization, the territory was occupied by Morocco and Mauritania; in fact, both States were claiming rights to this. Following the withdrawal of Mauritanian troops, Morocco remained the only State occupying the territory, which is still contended by it and the Polisario. The latter constitutes the political entity representing the Saharawi people and is supported and hosted by Algeria. It is easy to see how, within the dispute over Western Sahara, numerous factors come into play. In this first chapter is reported the history of the tribes that inhabited the territory before colonization in order to understand how the fragmentation of the latter and their nomadic nature contributed to create ambiguity about who really constitutes the people which has the right to politically control the territory. This ambiguity is further accentuated after the arrival of the Arabs since the latter established linkages with the tribes, which are at the origin of Moroccan claims on the territory. 1 G. PAPALLO, Il conflitto Dimenticato nel Deserto del Sahara occidentale, in Opinio Juris, September 3 2018, available at www.opiniojuris.it. 2 The natural resources of the territory will be deepened in paragraph 1.4. - 4 - Afterwards, there is a narration of the Spanish colonization to which the conflict has followed and which gave rise to Resolution 32923 adopted by the General Assembly to establish whether or not the territory represented terrae nullius at the time of colonization. Finally, there is an evaluation of natural resources present in the region; these, as anticipated, are at the basis of the economic interests lying behind the dispute. 1.1 The prehistory of Western Sahara and the passage from fragmentation to the Saharawi people Archaeological studies have shown that in the Neolithic age the Sahara was not a desert environment, it was rather characterized by dense vegetation. There was, indeed, a lush savannah that an ecological disaster at the end of 3000 BC led to desertification. The sandy expanse is the most common aspect of the Sahara desert, its formation is linked to the action of ancient, large waterways. The clouds that come from the Mediterranean, are stopped by the Atlas mountain ranges which subtract their dampness canceling the rains. Years can pass without a drop of rain touching the ground: the Saharan has never known the benefit of a regular rain. However, there are hurricanes, which are as violent as they are rare. In the desert there is a constant struggle to survive against reptiles, insects, droughts and bad weather; the oases – the only points where water emerges from the subsoil - are separated from each other by immense distances4. The wild and hostile nature of the territory explains why it is so hardly habitable. In fact, the peoples who came there and who inhabited it over the centuries have been mostly nomadic peoples. The Berber nomads migrated to the area around 1000 BC, they were divided into two main groups: the Zanata and the Sanhaja; the former were more sedentary and controlled the oases of the Northern desert, the latter were nomads dedicated to sheep farming and agriculture in a hostile environment, they led the black populations that inhabited the Southern desert to migrate to the South of the Senegal river5. The Sanhaja were also named “cloud hunters26 because of the nomadic nature which characterized them; their subsistence was helped by camels and dromedaries, also known as the ‘desert ships’: they are pack animals, means, units of exchange, an instrument of war, the foundations of their diet and a source of leather7. The Sanhaja and the Zenata were divided into fragmented tribes of a belligerent nature, among the various tribes there were mostly hostile relations also because there were no over-tribal forms of exercise of power that unified the people, the nomadic nature of which further contributed to accentuating tribal divisions. The fact itself that the tribes were so fragmented helped to favor the invasion by other peoples. However, the very presence of external forces, represented by the invasions, meant that these initially 3 Resolution 3292 (XXIX) of the General Assembly of 13 December 1974, on the question of Spanish Sahara. 4 A FIORE, Cos’è il Sahara, Turin, 1972, p. 24-25. 5 M. GALEAZZI, La Questione del Sahara Occidentale, Profilo Storico e Documentazione, Rome, 1985, p.13. 6 T. HODGES, The Western Sahara File, in Third World Quarterly, 1984, p.74-76. 7 Ibidem. - 5 - fragmented tribal organizations became united against a common enemy and by a common interest related to sovereignty to be exercised in the territory in order to prevent the establishment of foreign settlers. As far as concerns the Saharawi population, in fact, the unifying elements of the society consist
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