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Features

The question of Western Sahara: from impasse to independence

Pedro Pinto Leite and Jeffrey J. Smith

2013-02-27, Issue 618

http://pambazuka.org/en/category/features/86407

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There is little hope for a genuine referendum on self-determination for the Sahrawi people. Their international supporters and the UN General Assembly should now work towards universal recognition and acceptance of the statehood of Western Sahara.

Western Sahara remains Africa’s last colony. The Sahrawi people – with more half their population in refugee exile in desert camps and others under military occupation – are among the last people to be waiting to realise the right to self-determination, a right that in its protection and assurance is a paramount duty of the organised international community, including the United Nations. [1] Even with a formal process for their self-determination established more than 20 years ago, the right remains denied to the Sahrawi people. The international community has deferred to a United Nations that has proven unable to break the impasse over the future of the Sahrawi people because of a Security Council that is unwilling to act and a General Assembly which has relinquished its historical role to oversee decolonisation.

Two other important norms of international law continue to be violated in Western Sahara, namely the prohibitions against territorial conquest and aggression, intended to be the basis for peace and stability in the modern order among nation-states. These norms have been all but forgotten in the Sahara and the resulting apparent impunity enjoyed by Morocco is both an objectionable precedent and a phenomenon which damages international law. The case of Western Sahara could not be more clear, whatever one’s perspective, including as a matter of international relations, law, the social and economic development of northwest Africa, and justice itself.

Jacob Mundy, an American scholar who has written extensively on the question of Western Sahara, expresses the circumstances in the following way, with remarks that call to mind the logical construct of a Columbus’s egg:

The [International Court of Justice’s 1975] opinion on Western Sahara is most often cited as proof definitive that Western Sahara is owed a referendum on self-determination. However, this claim is based upon a half-reading of the summary of the Court’s opinion. A full reading of the Court’s entire opinion shows that the ICJ was very clear that the sovereign power in Western Sahara was and is the native Western Saharans [the Sahrawi people]. The purpose of a self-determination referendum in Western Sahara is not to decide between competing sovereignties, whether Moroccan or Sahrawi, but to poll the Sahrawis as to whether or not they wish to retain, modify or divest their sovereignty. We need to stop talking about self-determination as an act that constitutes sovereignty in Western Sahara. Sovereignty is already constituted in Western Sahara. As the ICJ said, Western Sahara has never been terra nullius.” [2]

This article, inspired in part by Jacob Mundy’s reasoning and impelled by the stalled dynamic of realising the Sahrawi people’s rights and resolving their circumstances, aims to inquire into the issue of self-determination, a requirement presented to the Sahrawi as the only path to some future political and legal status including possibly as an independent state. From such a discussion, we advance a proposal to overcome the current impasse.

THE CHIMERICAL REFERENDUM

Several observations should be made at the outset about a referendum for Sahrawi self-determination. The most evident is that a referendum – a consultative electoral choice by the legitimate inhabitants of a colonised (i.e. non-self-governing) territory to settle upon a political status – is not required including as matter of international law or the relevant UN decolonisation resolutions (notably General Assembly Resolutions 1514 (XV) and 1541 (XV) of 14December 1960). A referendum is also not a matter of general UN policy or direction in decolonisation cases and it did not occur in the majority of cases during the era of decolonisation in the 1950s and1960s. To be sure, a referendum properly done confers legitimacy on a United Nations which has an obligation to ensure (or at least establish the underlying conditions for) orderly and democratic self-determination, especially where the organisation has a substantial role, such as in East Timor (Timor-Leste) and Namibia. The form of realising self-determination –the modality of ensuring a colonised people have available to themselves an elective choice – is less important than the substantive right to be decided upon, namely, continuation of colonisation (that is, incorporation into the colonising state),association with the former colonising state, or independence. The UN has always been clear that all three are available to such outcomes are to be always available to non-self-governing peoples, even as the number of cases dwindles, and it has particularly asserted such a range of elective choices as available to the Sahrawi people. The International Court of Justice has recently confirmed the substantive right:

During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation ... A great many new States have come into existence as a result of the exercise of this right. [3]

The conduct of a referendum organised by the UN as an ostensibly disinterested third party can also ensure a more politically acceptable outcome for the occupying state, as with Indonesia in Timor-Leste. Moreover, the important factor of political recognition of a new state – if independence is the choice of a self-determining people – in the organised international community is a useful advantage. Finally, the need to promote peace, community order and social development in a newly independent former colony, especially after a period of annexation with possible in-migration by peoples from an occupying state, would seem in part to be helped by a transparent, externally conducted and democratic process.

The origins of the UN’s self-determination process for the Saharawi people should be recalled, noting this was first a responsibility of Spain as the coloniser of what was then Spanish Sahara, an obligation not diminished by Spain’s November 1975 agreement with Mauritania and Morocco to jointly administer the territory; the Madrid Accords. For its part, the UN plan for self-determination had its roots in efforts by the Organisation of African Unity (now the African Union) that began in 1982,culminating in a 1988 settlement proposal, agreed to by Morocco and the Polisario Front in the form of measures adopted by the Security Council in 1990and 1991. The agreement came at a critical moment. [4] Mauritania had already abandoned its claim to the territory and recognised the Sahrawi Republic. [5] From the moment of Mauritania’s August 1979peace treaty and admission of its conduct of an “unjust war” the Sahrawi people had only a single occupier to contend with, the Moroccan army then suffering heavy losses. [6]

As such, the active end to hostilities came as a relief to Morocco. The 1988-91 settlement plan had several flaws, including Minurso’s lack of capacity to effectively ensure the registration of Sahrawi nationals for a self-Determination referendum and the maintenance of peace and human rights in the occupied part of the territory leading up to the actual conduct of a referendum. [7] The most serious problem was the flexibility given to Morocco to contest the enfranchisement process, the kingdom insisting that large numbers of persons with dubious connections to the Sahrawi people and the territory must be qualified, obstructive behaviour that continued until the practical end of the referendum registration process in 2004. [8] In the result, during the active years of the UN’s work toward a referendum Morocco was able to both boycott the process of voter identification and insist on the addition of large numbers of its nationals to voting lists, leading to the routine postponement of the referendum. [9] MINURSO did, however, complete the process. Almost 10 years after MINURSO was established, the number of Sahrawis eligible to take part in the vote was fixed at 86,386.Morocco, fearing defeat in any referendum, immediately contested the result. [10]

The former United States Secretary of State James A Baker, appointed in March1997 as the UN Secretary-General’s Personal Envoy for Western Sahara, presented a proposal to overcome such problems, the so-called Framework Agreement or Baker Plan I as it came to be known. [11] But the plan did not provide for independence as an option [12]- only autonomy within Morocco [13]- and was therefore at odds with an established norm of international law: the people of a non-self-governing territory can only be said to have reached a full measure of self-government if able to decide on an independent state, among other options. [14] This norm is the core of the right of peoples to self-determination, widely considered jus cogens and one required to be recognised and upheld by all states as an obligation erga omnes . [15] Backed thus by international law, the Polisario Front rejected Baker Plan I. [16] Undaunted, James Baker moved to develop a second plan for self-determination, one that envisioned Sahrawi self-rule under the governance of a Western Sahara Authority for a period of five years, to be followed by a referendum on independence. Baker Plan II provided that Moroccan settlers (who by then outnumbered Sahrawis in the occupied part of the territory by at least two to one) would be allowed to vote. This, too, was contrary to norms of self-determination given that the relevant UN principles after Resolution 1541 (XV) are clear that those entitled to vote are the bearers of the right to self-determination; the indigenous people of a colonised territory. [17] Here it should be recalled that in Timor-Leste’s 1999 referendum Indonesian settlers were disqualified. Nevertheless, Baker Plan II was unanimously endorsed by the Security Council. The Polisario Front reluctantly (even “surprisingly”, according to many observers) accepted the plan. It is now understood that the Sahrawi leadership endorsed Baker Plan II confident that the outcome would be one where Moroccan settlers would largely opt for independence, so escaping poverty and a dictatorial regime. [18] Anticipating that it would lose the vote, Morocco rejected the plan. [19] Moreover, it feared that democracy during the five years of transitional administration leading to the referendum could ‘infect’ the kingdom. [20]

Any notion of a self-determination referendum in Western Sahara – regardless of the population eligible to participate – has been rejected by Morocco since 2002. Notwithstanding the stated commitment of Morocco’s Hassan II to the 190-91 UN settlement terms and the 1997 framework process, his successor Mohammed VI rejects a referendum, declaring Morocco’s claimed sovereignty over its so-called Southern Provinces to be irrevocable. [21] In June 2004 James Baker resigned in frustration over the situation.

As alternative to a referendum, Mohammed VI introduced the idea of limited autonomy for Western Sahara. On 11 April 2007 Morocco’s government transmitted to the new UN Secretary-General Ban Ki-moon a proposal for the territory’s autonomy, styled as the “Moroccan initiative for negotiating an autonomy statute for the Sahara region” and described as “a basis for dialogue, negotiation and compromise”. [22] The Polisario Front had anticipated the initiative and so delivered to the Secretary-General a day earlier its “Proposal For A Mutually Acceptable Political Solution Assuring The Self-Determination of the People of Western Sahara”. [23] By month-end the Security Council responded with Resolution 1754, urging Morocco and the Polisario Front to “enter into direct negotiations without preconditions and in good faith.” Talks started that June in Manhasset, New York and numerous rounds have been held since in various locations. While the conduct of negotiations, now under the auspices of the current Personal Envoy of the Secretary-General, the former US diplomat Christopher Ross, has meant that Morocco must contend with the Polisario Front as an equal, there has been no tangible progress since April 2007. Side talks in November 2011 on the subject of natural resources in Western Sahara were fruitless and efforts to have the UN assume a human rights monitoring role as part of MINURSO have failed. [24] From the standpoint of the involvement of the UN and the organised international community the impasse following James Baker’s resignation has continued and there has been no momentum toward either of the parties’ 2007 proposals. While this status quo is widely regarded as unacceptable, the community of states defers entirely to the UN’s conduct of the matter, thus entrenching the dynamic.

A PRELIMINARY CONCLUSION

Two decades on, it is evident that the process for an act of Sahrawi self-determination has failed. The impasse is routinely explained away as the inability of the parties themselves to change their positions in negotiations, the Polisario Front for its part viewed as intransigent because of its insistence on a credible referendum process and a reliance on international law. What the commentators have been reluctant to emphasise is that the Sahrawi position is entirely consistent with the law. The ICJ’s 2010 Kosovo advisory opinion underscores the point. And so while it cannot quite be said that the Sahrawi people were deceived when they agreed to the 1988-91 settlement and referendum arrangements, the basis of such measures has certainly and obviously been denied to them. One of the avowedly more important norms of international order and security in the modern age, colonial self-determination, goes unremedied. So, too, does any challenge to uphold another important norm, that of territorial integrity, as well as international humanitarian law in an occupation notorious for human rights abuses, the in-migration of settlers and the taking of natural resources. [25]

There are two further unhappy results from the present impasse, namely the diminished capacity and reputation of the African Union to be a respected interlocutor to the “question” of Western Sahara and the demonstrable inability of the Security Council to resolve the conflict, whether within the norms of international law or not. The latter issue is more serious when we recall that the UN, led by the Security Council, was successful in a shorter period of time with self-determination in Namibia and Timor-Leste.

For the Sahrawi people, the construct and requirement of the organised international community for a referendum has become deferred ad kalendas graecas.

IS A REFERENDUM MANDATORY?

If the delay in resolving the “question” of Western Sahara traces itself to a stalled dynamic in arranging a referendum for the Sahrawi people (or perhaps now even the entire population as it has come to be in occupied Western Sahara) then the requirement for such a process must be critically questioned. In its 1975 Western Sahara advisory opinion the International Court of Justice confirmed that “the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned” [26] acknowledging, however, that the need to have regard for the will of the people concerned did not have to come about only by referendum. [27] A referendum if necessary, but not necessarily a referendum.

And so the wide-ranging and accepted practice in the community of states for the assurance of “legitimate” (i.e. consultative, credible and electorally based) instances of decolonisation must be recalled. The vast majority of cases during the busy years of decolonisation reveal the acceptability of peoples exercising the right to self-determination and accession to independence without referenda. Among them can be counted all former Portuguese colonies with the exception of Timor-Leste. [28]

Moreover, the risk of conducting a less than fully credible (or democratic) referendum in Western Sahara should be considered. A sham elective process, aside from possibly introducing an unforeseen element into the conflict over the territory, would be a further precedent that damages international law, as the case of a fraudulent consultative exercise in West Papua, the 1969 “Act of Free Choice”, has demonstrated. In any event, a referendum as it would be conducted in Western Sahara is now not one in which Moroccan nationals settled into the territory would be disqualified and so would be a referendum damaging to the principle of territorial integrity and the prohibition by international humanitarian and criminal law against population resettlement into an occupied territory.

On the other side of the ledger, the Sahrawis credibly exercised the right of self-determination when first constituting themselves as a state. Notwithstanding the historical and legal parallels between the two cases of Timor-Leste and Western Sahara, there is an important difference to be noted. For the Timorese a referendum was arguably required because, while there had been a declaration of independence and for a brief time Timor met the statehood conditions enumerated in the Montevideo Convention and customary international law (a permanent population, a defined territory, a government and the capacity to enter into relations with the other states), on invasion by Indonesia governance ceased and territorial control was lost. [29] In addition, the nascent Democratic Republic of East Timor achieved only limited recognition (from 11 states) and the regional organisation, ASEAN, sided with Indonesia. Finally, the exiled Timorese leadership did not pursue a statehood construct, holding to a singular position as a non-self-governing people. In this, Portugal maintained its position as the de jure administering colonial power as demonstrated by its challenge in the ICJ to the 1989 Australia-Indonesia Timor Gap Treaty for seabed petroleum and, later, as a party to the May 1999 agreement with Indonesia for a referendum in the territory. [30] Finally, a UN conducted referendum was a useful precursor to the accepted need for the UN to administer the territory and build institutions for statehood over a three-year period until independence in May 2002. [31] The utility of such a popular, and widely supported process, can be seen at present in Kosovo and was arguably critical in the culmination of South Sudan’s long running secession effort.

For the Sahrawi people, the circumstances are manifestly different. No serious assertion can be made that the SADR is not a state. The criteria for statehood are well established: (i) a people culturally and linguistically different from those of Morocco; [32] (ii) a defined territory within colonially prescribed and universally accepted boundaries, one-fifth of which is under its control; [33] (iii) a government with exclusive jurisdiction over a substantial part of the Sahrawi population that is in the liberated area of Western Sahara and the refugee camps at Tindouf; and (iv) the capacity to enter into relations with other states, the Sahrawi Arab Democratic Republic having been recognised by more than 80 states (and conducting diplomatic relations with 40 of them, with embassies in 18 capitals). In addition, the SADR was admitted in 1982 to the regional organisation, the OAU (something that resulted in Morocco quitting the organisation) and is a founding member of OAU’s successor, the African Union. [34]

While it is true that the larger and economically important part of the territory is ruled by Morocco, illegal occupation cannot of itself terminate statehood. [35] Indeed, as Kuwait’s invasion and occupation by Iraq in 1990 has shown, there is an obligation to expressly maintain territorial integrity in cases of annexation. An additional factor is the absence of a colonial administering state. International law together with widespread state practice is clear that a colonising state continues with the obligation to ensure the self-determination of a subject non-self-governing people, however much that state may be absent. Spain’s abandonment of Western Sahara might properly be construed not so much as recognition of the Saharawi Republic but of the fact that all other options for self-determination have been exhausted. [36] The problem with the existence of the Sahrawi state is two-fold: the requirement for recognition by all states as a political act whatever the material-factual existence of the Saharawi Republic and the deference to the UN in resolving the “question” of Western Sahara exclusively within the construct of self-determination and not – as with Kosovo and South Sudan at present (and in a somewhat different context, Palestine) – a new state emergent into the organised international community.

The problem with accepting an existing, functional Sahrawi state may be the result of confusion over what has come to be a singular standard in the international community, most recently seen in the cases of secession, that states coming into being must undergo the same legitimacy requirements including a reasonably credible and democratic choice for independence and some measure of consent by the former parent (or occupying) state. [37] However, the better reason for the lack of acceptance of the Sahrawi state is the reluctance of the organised international community to disturb the status quo of a claim that is rigidly maintained by Morocco. Whatever the overarching norms of international law, deferring the matter to the United Nations has contributed to the impasse.

A FURTHER CONCLUSION

By now it should be clear that a referendum for self-determination arranged for the Sahrawi people is not a mandatory requirement of international law, state practice or UN norms. If the right of self-determination is accepted – and it is almost universally by states in the case of Western Sahara – it can be accomplished by other means. The overwhelming precedent is that of moving directly to independence and therefore statehood within the colonial (non-self-governing) context. It must be recalled that the Sahrawi people have been resolute about such a choice. No serious argument, much less any credible evidence, can be asserted that the Sahrawi people favour anything less than outright statehood and have, at least with that part of their population self-governed in exile and so able to declare a consensus, said so continuously since February 27, 1976. The apparent problem of acceptance of Sahrawi statehood – in other words, recognition of the SADR – is not so much a problem of approving the existence of the state as it is a refusal to contemplate (and address the end of) an illegal occupation together with the possible political and social upheaval to result in Morocco. Moreover, a referendum held out as the only mode or route to self-determination, whether in a non-self-governing or secessionary context, establishes a norm that may be unworkable in future cases where an occupying state’s cooperation and consent is considered necessary to the exercise.

ASSESSING THE INSISTENCE ON A REFERENDUM

We might ask why, when it comes to Western Sahara and the Sahrawi people, a referendum is not mandatory there been so much insistence on it. After all, there is not much doubt – arguably much less than in the previous UN referenda for Namibia and Timor-Leste – that independence would be broadly chosen. However, the Sahrawi people themselves would benefit from the perceptions resulting from a properly conducted referendum, not least of which would be the lasting basis for universal recognition by states and the further legitimisation of the Sahrawi statehood “project”, including by participation of the whole Sahrawi populace. As with Timor-Leste, the consequence of a referendum would be to set aside obstacles in the SADR’s new relationship with more powerful states, notably the United States and France, which obstacles exist because of their support to Morocco.

Within the UN the “question” of Western Sahara has become almost exclusively the preserve of the Security Council. The role of the General Assembly, reaching a high water mark in the years of pursuing an end to occupation and self-determination in Namibia, going so far as to create a council to govern the territory in absentia, has progressively diminished. The annual resolutions of the General Assembly, taken up from the Special Political and Decolonisation Committee, while re-iterating the right to self-determination, are not pursued by the Security Council and serve to reiterate a broad acceptance of Morocco as a legitimate party through statements that settlement of the “question” of Western Sahara must be “just, lasting and mutually acceptable” to the two parties concerned.

There is also the phenomenon of the status quo of self-determination, most starkly demonstrated by Western Sahara’s continuing inclusion on the UN’s list of Non-Self-Governing Territories, conferring a degree of protection not so much to the Sahrawi people as to at least one right they enjoy. [38] An over-assertion of statehood seemingly puts that at risk, and it is for this reason that the SADR has not sought a fuller presence in UN institutions, for example by observer status in the General Assembly or participation in the UN Food & Agriculture Organisation which conducts extensive fisheries research in Saharan coastal waters. [39]

The situation is therefore one of schizophrenia. The Sahrawis conduct their affairs as a state, at least for that part of the population in exile that can do so, while much of the community of states is not willing to accept the formal existence of that state. [40]

A THIRD CONCLUSION

A consultative exercise as important as the election by a colonised people of their political-legal status is a desirable objective. When it comes to the Sahrawi people, the insistence on a referendum is a pragmatic choice. But that insistence has allowed the underlying right of the people of Western Sahara, namely the actual achievement of their desired status, to be frustrated. It would be different if a referendum were imposed or able to be credibly organised by the Sahrawi people both inside and outside the occupied part of Western Sahara. Neither is likely. And so the insistence on process not only obscures the desired right, it obstructs it being realised.

How, then, can the present circumstances be addressed? What innovative approaches can be recommended, especially by those states and organisations concerned and who, through the UN, exercise a power dynamic to determine the fate of the Sahrawi people and their territory. To that essential question we turn.

AN ALTERNATIVE TO THE REFERENDUM

Apart from the rights of the Sahrawi people, together with the obligations owed to them as a population designated as non-self-governing, the UN Charter contains several prescriptions useful to resolve their status. Such requirements, it must be added, do not encompass the details of self-determination, a task in the after the Charter left to the General Assembly and found in Resolutions 1514 and 1541, above. In the event of territorial annexation, and there is no clearer case at present than that of Morocco in Western Sahara, the Security Council may invoke the measures at Chapter VI and VII of the Charter. Notwithstanding the impasse over Western Sahara and the nature of its initial occupation and annexation there has been no serious consideration of applying the compulsory provisions of the Charter. This is, of course, a reflection of the prevailing status quo.

What obviously engages application of the UN Charter is the matter of Western Sahara’s territorial integrity. The right to self-determination of the Sahrawi people having been violated by invasion, such violation, the reasoning goes, can only be brought to an end by withdrawal of Moroccan forces (and government control) from the territory. [41] This was the initial direction of the Security Council when confronted by the annexation of the territory, directing in resolution 380 on 6 November 1975 that “Morocco immediately … withdraw from the Territory of Western Sahara …” [42] It is less a question of the persuasiveness of this demand than it is to realise it decades later. How can the Security Council be made to act?

To begin with, a well-planned campaign for recognition of the Sahrawi Republic by UN member states seems timely. A useful reference point for the merits of recognition is the 2004 letter from the then President of South Africa, Thabo Mbeki, to Mohammed VI, explaining why South Africa had decided to recognise the Sahrawi Republic. [43] At the same time we recognise that as a matter of contemporary international law recognition is not strictly necessary for the existence of statehood, having only a declaratory value. But international politics is another matter and here it is clear recognition is profoundly important. So it is worth repeating that the SADR has been recognised by over 80 countries and the African Union. [44] In recent years, in addition to being recognised by some states ex novo (most recently South Sudan) and having established diplomatic relations with states some time after recognition (most recently Guyana), the SADR has managed to reverse the position of eight states that had suspended or “withdrawn” recognition: Nicaragua, El Salvador, Ecuador, Paraguay, Chad, Uganda, Sierra Leone and Vanuatu. There are also indications that states in the Global North are considering recognition of the SADR, for example Sweden where the Parliamentary Committee on Foreign Affairs approved a resolution in November 2012 calling on that country’s government to extend recognition. [45]

It is in this endeavour – a campaign for universal recognition of the Sahrawi state – that solidarity organisations will play an important role. That must necessarily engage coordinated action among the many worldwide groups which suggests the creation of an effective coordinating agency. Such an organisation does not yet exist and the need for it is ever more apparent. [46] By way of example, in the matter of the protection of natural resources in Western Sahara, including against their export from the territory, the Brussels based non-governmental organisation Western Sahara Resource Watch pursues case-specific and general campaign work coordinated across several countries and languages. [47] External NGO monitoring and action for human rights in occupied Western Sahara is equally sophisticated, with the Geneva based Bureau International des Droits pour le Respect humains au Sahara Occidental (BIRDHSO) created in 2002. [48] A newly organised NGO, Western Sahara Human Rights Watch (WSHRW), pursues a broader mission “to promote and support campaigns for the defense of human rights in the Western Sahara, civil and political, as well as economic or cultural.” [49] The space for coordinate action remains open for the vital work of a single respected and unifying organisation. It would necessarily need to have regard for, if not work somewhat in conjunction with, Sahrawi public diplomacy.

It is also clear that the Saharawi Republic should continue to comport itself as a state, especially in its informal relationships with states of the Global North and in preparation for the restoral of full independence. Kosovo offers a useful example of the interim steps to be taken, including accession to international organisations and receiving assistance in certain areas, such as rule of law capacity building. When it comes to territorial integrity, it should be recalled that the SADR routinely acts in its self-interest, for example through the enactment of ocean jurisdiction legislation in 2009. [50]

None of this is to suggest that the Sahrawi people and their leadership – both in exile at Tindouf and within occupied Western Sahara – should maintain anything less than an outspoken demand for the exercise of self-determination. Such an option must always necessarily remain available and in theory – if only because it is acceptable under international law – the resumption of armed hostilities. [51] However, the time has come for the most tenable and at least equally acceptable option to be advanced, and that is greater recognition of the Saharawi Republic. What is to result is no more an uncertain or damaging prospect for international relations, political stability in the states concerned, and the maintenance of the international legal order than has resulted from the present circumstances.

A FINAL CONCLUSION

Any campaign for wider recognition of the Saharawi Arab Democratic Republic must have as a primary goal approval by a majority of member states in the UN General Assembly. Subject to the specific requirements of the UN Charter for the SADR’s membership in the UN, the result would be two-fold: the extension of formal relationships by previously uninterested states together with a putting into perspective for possible action by the UN and the organised international community the problem of the illegal occupation of Western Sahara and continuing aggression that is revealed in the various dimensions of annexation, including human rights abuses, settler in-migration and the pillage of natural resources.

The General Assembly has previously acted in a leading role for decolonisation and the creation of states, its long-running work for Namibia being the classic exemplar. While the UN Charter and precedent confer sufficient authority, it should be recalled that the General Assembly’s 1950 Uniting for Peace resolution can also be invoked, Western Sahara being an instance where the Security Council, because of a “lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there [is a] breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures … to maintain or restore international peace and security.” [52] The long-running and profoundly unjust case of Western Sahara is an ideal example of the intended use of the resolution.

Even the most casual, objective observer must conclude that there is little prospect of the Sahrawi people enjoying a self-determination referendum of any credibility or acceptability in the years to come. Only a determinedly new approach by the UN Security Council or momentous political change in Morocco would seem to change the present impasse. Neither seems likely. With an organised international community more concerned with the revolutions of the Arab Spring, there is a reluctance to act when it comes to Western Sahara. The status quo stands to be further entrenched. And so it is time to recall that the Sahrawi people are the sovereigns of their territory, and the fact of their state is well established. From such a place there should be little distance to travel to a completed and universally accepted statehood, and that is by the path of recognition. The Sahrawi people, their international supporters and the member states of the General Assembly each have a role in the achievement of such a goal.

END NOTES

[1] The term “Sahrawi” is used here as the name of the original people of the territory of Western Sahara, known as Spanish Sahara until 1975. “Saharan” is applied in the geographic context, while “Saharawi” is used in the formal name of the Saharawi Arab Democratic Republic. The Sahrawi population numbers about 350,000;160,000 in the Tindouf camps, some 120,000 to150,000 in occupied Western Sahara and the remainder a diaspora primarily in Mauritania and Spain.

[2] The Question of Sovereignty in the Western Sahara Conflict , presentation at the IAJUWS conference La Cuestión del Sáhara Occidental en El Marco Jurídico Internacional, Las Palmas, Canary Islands (27-28 June 2008).

[3] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, page 403 at paragraph 79.

[4] The Settlement Plan, based on an earlier peace proposal by the Organisation of African Unity, was elaborated by the United Nations and entered into effect in September 1991 with a ceasefire. The plan foresaw the organisation of a referendum of self-determination in the months to follow. MINURSO, the United Nations Mission for the Referendum in Western Sahara, was established by UN Security Council Resolution 690 (29 April1991) with the mission to monitor the cease-fire and conduct the referendum.

[5] The Sahrawi Arab Democratic Republic(SADR) was proclaimed on February 27, 1976.Mauritania signed a peace treaty with the Sahrawis on August 5, 1979 and recognised the SADR on February 27, 1984.

[6] This was acknowledged by credible observers and Morocco itself. See e.g. “Desert War Flares Anew” Chicago Tribune (October 6, 1988)at: http://articles.chicagotribune.com/1988-10-06/news/8802050099_1_polisario-front-morocco-moroccan .

[7] See, for example, the statement of former US Ambassador Frank Ruddy, who served as Deputy Chairman of MINURSO, to the Congress of the United States on January 25, 1995, at:www.arso.org/06-3-1.htm.

[8] In the 1980s Morocco built a sand wall or “berm” 2,500 kilometres in length that divided the territory. Heavily garrisoned with more than100,000 Moroccan FAR soldiers stationed along it, the berm is a complex structure of bunkers, barbed wire, electronic surveillance systems and millions of landmines. The berm was reportedly constructed with the material and financial assistance of Israel, the USA and Saudi Arabia. It has received little comment, including as to its environmental impact, and is maintained contrary to international humanitarian law. Satellite imagery of the berm can be viewed on the Google Earth website.

[9] Ambassador Frank Ruddy's report, at note7 above, denounced the obstacles put by Morocco to MINURSO‟s work. Francesco Bastagli, appointed UN Special Representative for Western Sahara in 2005, strongly criticised UN inaction on Western Sahara and resigned in protest in 2006.

[10] This was the registration count or census figure on 30 December 1999. The Identification Commission announced the result on 15 January2000 and the Secretary-General reported it to the Security Council on 17 February 2000. See UN doc. S/2000/131(17 February 2000). “From Morocco‟s point of view, the numbers indicated total defeat.” Stephen Zunes and Jacob Mundy, Western Sahara: War, Nationalism, and Conflict Irresolution (Syracuse, NY: Syracuse University Press, 2010) at p. 215.

[11] Framework Agreement on the Status of Western Sahara, Annex I of UN Secretary-General Report S/2001/613 of 20 June 2001.

[12] The then UN Secretary-General Kofi Annan may have instructed his Personal Envoy to go no further than autonomy for Western Sahara within the Moroccan state. Former UN Undersecretary-General Marrack Goulding has said that Annan asked him “to go to Houston to persuade James Baker III to accept an appointment as Special Representative and try to negotiate a deal based on enhanced autonomy for Western Sahara within the Kingdom of Morocco.” Marrack Goulding, Peacemonger (London: John Murray 2002) at pp. 214-215.

[13] The 1999 referendum in Timor-Leste provided for the option of autonomy within the state of Indonesia as a matter of free choice by the Timorese people as well as a second option, independence. In contrast, the Western Sahara Framework Agreement required autonomy from the outset; it was to be imposed on the Sahrawi people. This contravened Principle IX of Resolution 1541(XV) which provides that: “[Any] integration should be the result of the freely expressed wishes of the Territory’s peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes impartially conducted and based on universal adult suffrage”.

[14] “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.” UNGA Resolution 1541(XV)(15 December 1960), Principle VI. See also paragraph 6 of UNGA Resolution 742 (27 November 1953): “[T]he manner in which Territories ... can become fully self-governing is primarily through the attainment of independence...”.

[15] “The exceptional importance of the principle of the self-determination of peoples in the modern world is such that today the principle has been held to constitute an example of jus cogens, that is, “a peremptory norm of general international law”, to quote the expression used in article 53 of the Vienna Convention on the Law of Treaties” (Hector Gros Espiell, The Right to Self Determination: Implementation of United Nations Resolutions (Study Prepared by the Special Rapporteur of the Sub Commission on Prevention of Discrimination and Protection of Minorities)E/CN.4/Sub.2/405/Rev.1, 1980).

[16] It is instructive to recall that, from the time James A Baker was appointed until his first plan was developed, the people of Timor-Leste proceeded through the self-determination process and were assured of having independence by May 2002. It is not known how persuasive this parallel case might have been in the consideration of the Sahrawi people and their diplomatic response in rejecting the Baker Plan I.

[17] In the same context, consider a recent report of the New York City Bar Association which notes that “the right of self-determination under international law pertains to the indigenous inhabitants of a Non-Self-Governing Territory – in this case the Sahrawis who inhabited the territory – and cannot be invoked by non-indigenous settlers”. The Legal Issues Involved In The Western Sahara Dispute – The Principle of Self-Determination and the Legal Claims of Morocco, New York City Bar Association, Committee on The United Nations, June 2012, at p.94.

[18] Statement by Emhamed Khadad, member of the National Secretariat of the Polisario Front and coordinator for MINURSO, at a meeting on Western Sahara at the University of Utrecht, 25 March 2002.

[19] “I would assume it was because they were worried that they wouldn’t win the vote.” James Baker in an interview with the American radio program Wide Angle, 19 August 2004, available at: www.pbs.org/wnet/wideangle/episodes/sahara-marathon/interview-james-a-baker-iii/873/

[20] For a discussion of the response to Baker Plan II, see Western Sahara: War, Nationalism and Conflict Irresolution, above note 10 at pp.234 ff.

[21] In March 2006 during a visit to the territory Mohammed VI declared: “Morocco will not cede a single inch, nor a grain of sand of its dear Sahara”. See statement at www.arso.org/01-e06.1314.htm

[22] See http://w-sahara.blogspot.co.uk/2007/04/moroccos-plan-full-text.html. Ambassador Frank Ruddy has described it as: “the latest in a long line of illusions that Morocco has created over the years to distract world attention from the real issue”, adding “The Moroccan limited autonomy plan for Western Sahara … might sound like a step forward, at least until one reads the not-so-fine print. Article 6 of the plan provides that Morocco will keep its powers in the royal domain, especially with regard to defense, external relations and the constitutional and religious prerogatives of his majesty the king. In other words, the Moroccans are offering autonomy, except in everything that counts. It gets even more disingenuous where the Moroccans say their plan will be submitted to a referendum, but fail to provide details. A referendum to be voted on by whom? By the Moroccan people? That would be absurd on the face of it. By the Saharawis themselves? If so, what happens if the Saharawis reject the plan? Would that mean Saharawi independence? The Moroccans are not likely to tolerate that result.” Karin Arts and Pedro Pinto Leite, eds, International Law and the Question of Western Sahara (Oporto: IPJET, 2007) at p. 12.

[23] The Proposal is available at: www.arso.org/PropositionFP100407.htm#en The Polisario Front restated its acceptance of Baker Plan II, and extended the prospect of naturalising or granting citizenship to Moroccan settlers at independence and waived possible future reparations claims between the two states. The 2007 Proposal remains the Polisario Front‟s formal position, including a stated commitment to holding a “genuine referendum”.

[24] See e.g. the 2012 annual report of the Secretary- General to the Security Council,“Report of the Secretary-General on the situation concerning Western Sahara ”(5 April 2012), UN doc. S/20121/197, at paragraphs 72 ff. See also “Preliminary Observations: Robert F. Kennedy International Delegation Visit to Morocco Occupied Western Sahara and the Refugee Camps in Algeria” (3 September 2012) available at: <http://rfkcenter.org/images/attachments/article/1703/Final091012.pdf>. On 28 November 2012 Christopher Ross announced he would not reconvene direct informal talks between the two parties for the time being.

[25] The value of natural resources exported from occupied Western Sahara in 2012, primarily phosphate mineral rock and fish, will exceed $500million. See generally the website of Western Sahara Resource Watch at: <www.wsrw.org>. The cost to Morocco of its occupation has not received critical attention. We consider it to be at least $1.5billion annually in identifiable military expenditures

[26] Western Sahara Advisory Opinion, Advisory Opinion of 16 October 1975, ICJ Rep.1975, para. 55.

[27] “The validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a "people" entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances”, ibid. para. 59.

[28] Few self-determination referenda were held in Africa. The referendum in French Togoland (1956) was not a referendum of self-determination per se , as it did not include the option of independence and so was rejected by the UN General Assembly. Those in Namibia (1989) and South Sudan (2011) were accepted and led to the independence of both countries. The referendum in Eritrea served to confirm a de facto independence – Eritrea had already won the war of liberation against Ethiopia and the referendum was a means to ensure recognition by the OAU (headquartered in Addis Ababa) and the UN.

[29] Article 1 of the Montevideo Convention on the Rights and Duties of States (26 December1933), 165 LNTS 19.

[30] Despite not having recognised the Democratic Republic of East Timor at the time of its unilateral declaration of independence in November 1975, Portugal severed diplomatic relations with Indonesia after the invasion.

[31] More accurately perhaps the “restoral” of independence.

[32] The Sahrawi speak Hassaniya, an Arab dialect different from that in Morocco.

[33] Since Morocco completed the berm in the late 1980s, the Sahrawi have undisputed control inland or east of it, a matter confirmed by the operation of the 1990-91 UN ceasefire and referendum arrangements.

[34] In July 2002 Mohamed Abdelaziz, President of the SADR, was elected vice-president of the African Union at its first summit. Morocco remains the only African state not a member of the regional organisation

[35] Ian Brownlie, Principles of Public International Law, 3rd ed (Oxford: Clarendon Press, 1979) p. 83. In a similar way, Hector Gros Espiell notes that the “foreign occupation of a territory – an act condemned by modern international law and incapable of producing valid legal effects or of affecting the right to self-determination of the people whose territory has been occupied -constitutes an absolute violation of the right to self-determination”, above note 16 at para. 45.

[36] In a recent article Hans Corell, the former UN Under-Secretary-General for Legal Affairs, described the Madrid Accords in these terms: “On14 November 1975, a Declaration of Principles on Western Sahara was concluded in Madrid between Spain, Morocco and Mauritania (“the Madrid Agreement”), whereby the powers and responsibilities of Spain, as the administering Power of the Territory, were transferred to a temporary tripartite administration. The Madrid Agreement did not transfer sovereignty over the territory, nor did it confer upon any of the signatories the status of an administering power; Spain alone could not transfer that authority unilaterally. The transfer of the administration of the territory to Morocco and Mauritania in 1975 did not affect the international status of Western Sahara as a Non-Self-Governing Territory. On 26 February1976, Spain informed the Secretary-General that as of that date it had terminated its presence in Western Sahara and relinquished its responsibilities over the territory, thus leaving it in fact under the administration of both Morocco and Mauritania in their respective controlled areas.” “Western Sahara – status and resources”, New Routes 4/2010, pp.10-13.

[37] Recall Hector Gros Espiell‟s reasoning: “[T]he right of peoples to self-determination has lasting force, [and] does not lapse upon first having been exercised to secure political self-determination...”, above note 16.

[38] A protection, however, that cannot be totally taken for granted, considering for example the case of West Papua: Although the so-called “Act of Free Choice” was a sham – something later admitted by the then UN Under Secretary-General Chakravarthy Narasimhan and confirmed by the recent report of the Dutch academic Pieter Drooglever – West Papua was removed from the UN‟s list of non-self-governing territories and has since been considered part of the Republic of Indonesia. See Pieter Drooglever, An Act of Free Choice: Decolonisation and the Right to Self-Determination in West Papua (The Hague: Institute of Netherlands History, 2009).

[39] See the website of the UNFAO/UNEP “Canary Current Large Marine Ecosystem Project” at: <http://www.canarycurrent.org/>

[40] The status of Sahrawi diplomats makes the point: Ubbi Bachir and Ali Mahamud Embarek, each formerly Polisario Front representatives in The Netherlands are now SADR ambassadors in Nigeria and Panama, respectively.

[41] See also Susan Marks, Kuwait and East Timor: a brief study in contrast, comparing the invasion of Kuwait by Iraq with the Indonesian invasion of East Timor, International Law and the Question of East Timor, above note 22 at pp. 174-179. For the reasons outlined above her conclusions apply a fortiori to the Moroccan invasion of Western Sahara.

[42] At paragraph 2 of the resolution. Article25 of the UN Charter obligates members of the United Nations to carry out decisions of the Security Council.

[43] “For us not to recognise SADR in this situation is to become an accessory to the denial of the people of Western Sahara of their right to self-determination. This would constitute a grave and unacceptable betrayal of our own struggle, of the solidarity Morocco extended to us, and our commitment to respect the Charter of the United Nations and the constitutive act of the African Union.” Letter of August 1, 2004, untitled, at: http://arso.org/MBK.htm

[44] Morocco’s isolation became even more pronounced when South Sudan achieved independence, acceded to the African Union and immediately established diplomatic relations with the SADR. There has been a campaign in recent years by Morocco to secure the withdrawal of recognition of the SADR by states in the Global South, with mixed success. The commentators agree that withdrawal of recognition does not signify or hasten the end to a state’s formal existence. See Article 6 of the Montevideo Convention, above note 29. Such “withdrawals” have occasionally been absurd, for example in Guinea-Bissau’s first recognising the SADR in 1976, withdrawing recognition in 1997, again extending recognition in 2009 and withdrawing it in 2010.

[45] See “Committee on Foreign Affairs at the Swedish parliament calls on the government to recognise SADR” (15 November 2012) at the Sahara Press Service website:www.spsrasd.info/en/content/committee-foreign-affairs-swedish-parliament-calls-government-recognise-sadr.

[46] Professor Stephen Zunes at University of San Francisco, comparing solidarity movements in the causes of East Timor and Western Sahara, concludes this is a “factor working against Sahrāwī independence … despite their impressive efforts at building well-functioning democratic institutions in the self-governed refugee camps where the majority of their people live, the Sahrawis have never had the degree of international grassroots solidarity that the East Timorese were able to develop, which eventually eroded support of the Indonesian occupation by Western powers.” See: <www.spectresine.org/resist/wsahara.htm>. “Though an international solidarity movement does exist for Western Sahara, primarily in Europe, it pales in comparison with the movement in support of East Timor, which grew dramatically in the1990s, and helped encourage greater media coverage on the human rights situation.” Presentation to the conference on International Law and the Question of Western Sahara, Institute of Social Studies, The Hague, 27 and 28 October,2006.

[47] See WSRW ‟s website at: <www.wsrw.org>. WSRW is thought to be unique among NGOs and solidarity groups concerned with Western Sahara by employing a staff lawyer.

[48] See the organisation’s website at: www.birdhso.org

[49] See WSRW‟s website at:<www.wsrw.org>. WSRW is thought to be unique among NGOs and solidarity groups concerned with Western Sahara by employing a staff lawyer. See the organisation’s website at: <www.wshrw.org>.

[50] Law no. 03/2009 of 21 January 2009Establishing the Maritime Zones of the Saharawi Arab Democratic Republic. The legislation resulted in the European Parliament reviewing the EU-Morocco 2007 Fisheries Partnership Agreement, which had allowed European fishing in the coastal waters of Western Sahara, leading to Parliament’s rejection of the treaty and the end of such fishing in December 2011. The SADR government has also issued petroleum exploration licenses for foreign companies in the Atlantic coastal seabed, and routinely protests the taking of natural resources from the territory to The European Commission and foreign natural resources companies.

[51] The use of force against colonial and foreign occupation is legitimate and permissible as a matter of international law. For example, in its resolution of 3 December 1982 (“Importance of the universal realisation of the right of peoples to self-determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights”) the General Assembly reaffirmed “the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle”. See UN doc.A/RES/37/43.

[52] UN General Assembly Resolution 377-A(3 November 1950) at: <http://untreaty.un.org/cod/avl/ha/ufp/ufp.html>.For a discussion of the possible application of the resolution see Jean Krasno and Mitushi Das, “The Uniting for Peace Resolution and Other Ways of Circumventing the Authority of the Security Council” in Bruce Cronin and Ian Hurd, eds, The UN Security Council and the Politics of International Authority (London: Routledge, 2008)at pp. 173-195.


* Pedro Pinto Leite is an international jurist and Jeffrey J. Smith a Canadian barrister. This article was reprinted with kind permission from the December 2012 issue of Western Sahara Review.

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