Since 1960, the principle of self-determination is going to encourage the territory under colonization or similar non-independent territory to determine the future of this territory regarding the wishes of its inhabitants.In Article 1(2) of UN Charter, the nature and the function of this customary principle are determined by the following terms, “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”. With the same idea, the Declarationon the Granting of Independenceto Colonial Territories and Peoples characterised the principleof self-determination in para.2, “all peoples have a right to self-determination, by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.
It is important to remember that western Sahara case its question of external self-determination and not a question of internal self-determination as it was suggested by Abdelhamid El Ouali in a more political and ideological manner without any respect to the principle of international law in the matter. This is what has been well demonstrated by the opinion of the International Court of Justice (ICJ),“ that the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned”. With the same idea, the judge Dillard goes further in his separate opinion when he stated “it seemed hardly necessary to make more explicit the cardinal restraint which the legal right of self-determination imposes.The restraint may be captured in a single sentence. It is for the people to determine the destiny of the territory and not the territory the destiny of the people…”. The direct consequences, from the judgment of the ICJ, that the self-determination of the people of Western Sahara is unquestionable and cannot be subject to the discussion without the approval of the indigenous people.
In this optic, to talk about the negotiations in the case of Western Sahara is a question that can be controversial, because the problem in his origin is a question of decolonization so why negotiate?
The negotiations on the future of Western Sahara stalled until June 2001, when baker presented his framework Agreement Proposal, known as Baker Plan I, (as an alternative to the initial settlement agreement signed between both parties in 1991). However, this plan has been rejected directly by Polisario Front for the reason that not respect self-determination of Western Sahara people. We can already state thatthis plan is more marked by its absolutist aspect because it wants to impose a solution against the nature of the question of Western Sahara.
Therefore, this situation led James Becker to develop a new plan on 23 May 2003, called the peace plan for self-determination to the people of Western Sahara or simply as Baker Plan II. The same as the ancient version of Baker Plan I, just it provided the self-determination of the Sahrawi people after a four to the five-year transitional period with local government under Moroccan sovereignty.
It can be deduced that Baker has introduced a new element in the question of Western Sahara, in introducing some aspects of realpolitikas part of a future solution. A situation that favours Morocco more than the Polisario. And from that moment the question of Western Sahara will be the object of the game of the great powers mainly Franceand the United States of America.
Western Sahara has been under colonial occupation since 1884, so it is necessary to apply the classical right of decolonization as the only democratic choice far from any political ideology but only the procedure or the mechanisms for the application of this right can be negotiated.
If all negotiations require concessions and compromise on both sides, how can hold any negotiations without respect to the international law of negotiation? Mainly how can you negotiate a core of the principle of self-determination, which is characterized by an imperative norm of jus cogens?
To understand the current dynamics of the UN mediator the former German president, Horst Kohler, it is necessary to examine the nature of the Western Sahara conflict in order to demonstrate the challenge who will face any final solution to the last colony in Africa. First by returning to the colonial history of Western Sahara, secondly, by showing that it is a question of decolonization, thirdly, by demonstrating that negotiations under the banner of Chapter 6 cannot at any time unblock this situation of non-peace and non-war, and finally suggesting that only the democratic choice is the appropriate solution to end the problem of the last colony in Africa.
The colonial fact
The Western Sahara, which maps were named before the Spanish border in 1975, is made of two regions of distinct geographical character. From north to south, there is first the Saquia el Hamra, which extends along the coast, ocean up to Cape Bojador. Then Rio de Oro, which stretches to the white cape, the limit of what is now called the state of Mauritania. It is a much more arid region. Its surface area amounts to 266,000 square kilometres. It is one of the most sparsely populated territories in the world.
The current society of Western Sahara is formed by the fusion of the two Arab and Berber populations, with a black pupil of sub-Saharan Africa forms the basis of the society of Western Sahara which belongs with Mauritania to the culture of “Baydan” the whites” that will spread throughout the west Saharan.
The Spanish colonial quest for Western Sahara is part of the Spanish perspective and vision of the era of Reconquista. It is in this sense that one must understand in the first place the fierce struggle between Spain and Portugal, to install in some placeson the Atlantic coast of Western Sahara.
To fully understand this period, which de facto and de jury condition the Western Sahara issue for today and for the future, it is interesting to examine briefly the epoch of Spain in Western Sahara.
1. The colonial history of Western Sahara
The history of the colonial countries, written by the colonizers, was marked by a great silence on the diplomatic aspects which presided over the conquest of the African territories.
Spain’s interest in the shores of Western Sahara is very mature. In fact, Spain began to take a direct interest in Western Sahara from 1470 under the initiative of Diego de Herrera, the governor of the Canaries. He built the first Spanish fortress of Santa Cruz de Mar Pequena in 1476, his main goal was to obtain African slaves to induct in the Canary Islands because the autochthone people of Canary Islands having been decimated.
In 1494, Spain and Portugal have signed the Treaty of Tordesillas, through which Portugal recognized Spanish control of the Saharan Coast from Cap Bojador North to Massa, a point near Moroccan town Agadir. With the same idea, the Catholic monarchs of Spain authorized Alonso Fernandez de Lugo to build more forts along the Western Sahara coast.
Then, the Spain interest in Western Sahara will become very intense. The reason for this Spanish colonial conquest is justified by the loss of its weight as a maritime power with Portugal who has been replaced by two great powers Great Britain and France. These last two states will enter a merciless competition to acquire new territories in Africa. It is in this sense that we must understand Spain’s attachment to Western Sahara. The effective withdraw of Spain was just in February 1976.
As Western Sahara is rich in fish and is underlying the Canary Islands would fall in the hands of a hostile power mainly France and Britain, for that reason Spain established several geographical and commercial companies between 1870 and 1880 to prevent those states to take part in western Sahara land. Some of these companies are the association Espanola para exploration de Africa, the Sociedad de Geografia de Madrid, the Sociedad Espanola de Africanistas y Colonistas, the Sociedad Pesquerias Canario Africanistas. With its companies, Spain becomes an indisputable master of Western Sahara.
In this context, Spain constructed a fortified post in 1885 in Villa Cisneros(the current name Dakhla). During this period many attacks have been held by the autochthone against the Spanish presence until 1895 when a peace agreement was concluded with Western Sahara tribes.
In conformity with the act of Berlin, the Spanish government announced its protectorate over Rio de Oro and the adjacent region. In 1887, the region was placed under the authority of the Governor-General of the Canary Islands, it’s in this perspective, and Spain will continue colonizing Western Sahara. But the Spanish occupation of Western Sahara will become effective in the eyes of other great European colonial powers from the following agreements: the agreements of 27 June 1900, the agreement of 3 October 1904 and the agreement of 12 November 1912, in which France recognized the Spanish rights over Rio de Oro, Saquia El Hamra and the land lying between 27°40 North latitude and the course of Oued Draa.
However, the Spanish authority was unable to pacify this region until 1934; no any tribe authority had over-regulated the Western Sahara society. On the whole, it was not able to bend the entire tribal society of Western Sahara until the strongcooperation between France-Moroccoand Spain cooperation in 1958 known as Ecouvillonoperation to put an end to Western Sahara tribe’s resistance. From this moment we can say that Western Sahara has become totally under the rule of Spain.
2. The Spanish occupation
The effective Spanish occupation of the whole of Western Sahara could not be realized without the support of Morocco, in fact since the 18th century the treaty signed between Spain and Morocco on 28 of May 1767, show as evidence in its Article 18 ” his imperial Majesty Sidi Mohamed will abstain from deliberating on the subject of the settlement that his Catholic Majesty wishes to found south of the Noun river, for he cannot be held responsible for any accident or misfortune that might occur, since his sovereignty does not extend that far and vagabond and ferocious people inhabit this country causing damage to the people of the Canaries”. Since that time it can be said that Western Sahara is under Spanish occupation, and it is only necessary to briefly decipher the installation of the Spanish administration and how the nomadic tribes of Western Sahara will bend to the Spanish authorities?
When the Second World War broke out, Spain was forced to focus its attention on Western Sahara land to explore and exploit the raw materials needed for its economy. It finds in the geographical proximity of Western Sahara in front of the Canaries islands, rich in fish of first necessity for the Spanish population (which is a marine population) and in order to look for other raw materials which can change the political and economic situation on the Franco regime. Western Sahara is presented as the necessary remedy for the Franco dictatorial regime.
However, Spain will be more interested in Western Sahara with the discovery of Boucraa phosphate deposits in 1945, and from that moment another story will be drawn up mainly with the influence of the Spanish movements in Western Sahara to find work or to apply the programmes and the policy of the regime. In the same way, the Spanish government use the territory as a dumping ground for political prisoners and built a prison for this purpose at Villa Cisneros (Dakhla).
In 1950, the general Franco made his first visit to Western Sahara in order to demonstrate the vitality of Western Sahara for his regime, to convince the western world that Western Sahara could be strategic importance in the west struggle against communism.
Unlike the other European colonial powers, Spain did not pursue an active civilizing mission in Western Sahara. To illustrate this fact you can take the example of education, where they haven’t installed any secondary school until early 1960. With the same idea, the integration of the native into the labour force was quite minimal.
In this optic, limited social development was undertaken because the colony was ruled basically by the military administration. With Moroccan claim over Western Sahara after his independence in 1956, Spain will declareWestern Sahara as a province of Spain. Following this politic, numerous indigenous Saharawi were established in the provincial council. Spain installed the new Djemma know as Assembly of the Saharan who represented all the tribes of Western Sahara. The Spanish citizenship was granted to all the natives. In this new assimilation approach, two native Saharawi were elected to the Spanish Cortes as known as Spanish parliament for the first time in 1963.
The active exploitation of phosphates in early 1960, to participate in the development of the region and to stimulate the growth of Spanisheconomy,we will witness a large flow of immigrants from Spainto Western Sahara.
It is surprising to see Spain had a great interest in Western Saharajust when the other European colonial powers will withdraw from African territories from the 1960s.At that time, the decolonization of African territories will reach its peak while Spain will be more involved in its colony. However, with a wave of decolonization and the international discourseof the time, Spain will end its rule in early 1976.
In this context of decolonization, why Spain has remained frozen in its colonial position without giving the Sahrawi choice to choose their destiny? And how it combines with Morocco and Mauritania to sign the agreement of Madrid in 1975? (The agreement of Madrid still subject of controversy from the point of view of the international law of decolonization).
— Notes de bas de page —
 The notion of people will become an ideological affair between Germans and French, for the German thinker Herder it is based on the right of blood (Jus sanguinis), integrating the genealogical principle of biological identity, and for Renan based on the law of soil (Ju soli), based on the voluntary gathering of individuals, thus on a national civic pact. The “People” defined themselves as the voluntary association of a population with common ideals and a common history. To understand the evolution of the Saharawi people, see MISK Ahmed-Bâba, Front Polisario l’ame d’un people, Paris, Ed Ruptures, 1978.
 Stefan Kadelbach, Jus Cogens, Obligations Erga Omnes and other Rules – The Identification of Fundamental Norms, Edited by CHRISTIAN TOMUSCHAT AND JEAN-MARC THOUVENIN, The fundamental rules of the international legal orderJus Cogens and Obligations Erga Omnes, MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON,Leiden,2006,pp.21-40.
 The locality was called Villa Cisneros, in tribute to Francisco Jiménez de Cisneros. Francisco Jiménez de Cisneros born in 1436 in Torrelaguna and died in 1517 in Roa, is a cardinal, religious reformer and statesman Spanish. To get an idea about this locality see, Isidoro Correa, Rio De Oro Sahara, Madrid,Ediciones Vulcano,1987.
 During 1957 and 1958 as a result of the joint French-Spanish military campaign undertaken against the native anticolonial forces in western Sahara and southern of morocco in the region of River Deraa. Nowadays many analysts prove the Moroccan complicity in this operation, they were afraid that the Saharouis can install their power on the southern part of Morocco in the region of Guelmim and Tantan until Tarfaya, which constitutes a real threat for Spain and also for Morocco unity.
 The Spanish geologist, Manuel Alia Madina, established existence of phosphate deposits in the territory in the late 1940s.However; it was not until the early 1960s that the magnitude of these deposits was determined. Phosphates mining is basically surface mining. Before his departure Spain exported amounted to 2 million tons a year (Tony Hodges, 1983, p.127.)
 Djemaa: the assembly of notables of a tribe, or a tribal fakhd, or fraction, which in traditional Saharawi society, acted as a legislative, executive and judicial body. Anyone who refused to obey its decisions could be expelled from the tribe or fraction. The practice of collective decision-making through Djemaa indicated that Saharawi society was relatively democratic( see Tony Hodges , historical dictionary of Western Sahara African Historical Dictionaries N°35 , London, The Scarecrow Press INC,1982.