The illegal scope of the US recognition of Moroccan sovereignty over Western Sahara

Source : Pixabay – Hoekstrarogier

The question of Western Sahara is one of the oldest international conflicts still alive and of course, one of the conflicts where antagonisms are most bitter[1]. Over time, it has become clear that this conflict is far from being resolved under international law.

The focal point of international legal analysis of the question of Western Sahara is the application of the principle of the right of peoples to self-determination[2]. It is from this perspective, that the legal nature of Western Sahara has been debated at the United Nations since 1964.

It should be noted from the start, at the origin of the absence of a definitive solution that respects the self-determination of the Saharawi people, the geopolitical calculations[3] of the great powers, mainly France[4] and the United States[5]. Thus, the conflict in Western Sahara is more than forty-four years old and now falls into the category of « frozen conflicts”[6].

One of its manifestations is the recognition by former US President Donald Trump[7] of the supposed « Moroccan sovereignty » over Western Sahara, in exchange for the normalization of Moroccan relations with Israel. This can be characterized as an unnecessary act, as it threatens the credibility of the United States as a defender of the principle of self-determination of peoples and democracy while providing political support for the illegal occupation of Morocco in Western Sahara. In this perspective, are there any legal consequences of Trump’s declaration on the future of Western Sahara?

This article attempts to demonstrate from the point of view of international law, the illegality of the American president decision on the question of “Moroccan sovereignty” over Western Sahara. To do this, we will try to understand the legal nature of the Western Sahara issue from a historical perspective since the Spanish colonization. Then, we will analyze the erga omnes character of self-determination, to finally approach the study of the obligation of non-recognition of the United States from the point of view of international law.

I-From the late Spanish colonization of Western Sahara to the unfinished decolonization

In the following lines, we will try to shed light on Spain’s actions in Western Sahara, from the proclamation of the Spanish “protectorate” on the coasts of Western Sahara in 1884 to the 1975 tripartite agreement between Spain, Morocco and Mauritania for the partition of Western Sahara with the Spanish abandonment of the territory as an administering power.

In other words, to study the history of the Spanish colonization of Western Sahara and to focus on the abandonment of this territory by Spain, without finished its decolonization so requested by the United Nations.

A-The Spanish colonization of the territory

The territory is known today as Western Sahara called until 1975 « Spanish Sahara », has an approximate area of 266,000 km2, with a facade to the Atlantic Ocean of approximately 1,062 km., and land borders that limit along 2,045 km. with the three neighbouring countries: to the East and South with Mauritania (1,570 km.), to the North with Morocco (445 km.) and the Northeast with Algeria (30 km.)[8].

The first steps in the occupation of Western Sahara took barely two years before the holding of the Berlin Conference, a true “Charter for the colonization of the African continent”[9]. The Berlin Act in 1884 defined the rights and duties of the European powers in colonial matters and fixed their zones of exploitation in Africa since it would establish the criteria from which colonization would take place. Leaving aside the various foreign attempts (English, French, Italian, Belgian and German) to occupy certain points of the Western Sahara Atlantic coast[10]. The first modern Spanish initiatives to take Western Sahara are of two types: private and state. 

The private initiatives of occupation follow one another from the second half of the 19th century[11]. Various occupation attempts failed before starting, such as that of Manuel Agustín Aguirre (1853), Baldomero Cabrera (1872), Antonio Baeza y Nieto (1875 and 1876), the Marquis of Irún (1879) and Antonio Trujillo Sánchez (1871), among other[12].

But the Spanish Congress of Colonial and Mercantile Geography, held in Madrid in 1883, gave rise to the Spanish Society of Africanists and Colonists, who advocated the permanent establishment of Spanish factories on the Western Sahara coast, requesting the Spanish government their armed protection. In February 1884, the Society anchored two pontoons (the Inés and the Libertad) in Río de Oro and Cabo Blanco. Later, on October 15, 1884, he sent an expedition headed by an Aragonese second lieutenant, who has a good knowledge of the Arabic language, Emilio Bonelli Hernando, a great promoter of the Saharawi company. In November 1884 he established three temporary wooden buildings (huts) in Río de Oro, Angra de Cintra and Cabo Blanco (named respectively, in honour of illustrious Africanists: Villa Cisneros, Puerto Badía and Medina Gatell). Thus taking effective possession[13] for the first time in Western Sahara.

On the other hand, in March 1886, negotiations between Spain and France had begun in Paris to delimit the possessions of each of these states in Africa, on the basis that Spanish rights over Rio de Oro(Western Sahara) were unquestionable. The land borders were drawn through three consecutive agreements, concluded between Spain and France between 1900 and 1912: the agreement of June 27, 1900, which fixed the limits of the southern border of the territory. The agreement of October 3, 1904, which extends the demarcation line to the north, and that of November 14, 1912, finally completes the delimitation. The negotiation of these borders which was conditional on the distribution of territories between these two powers in Equatorial Guinea, and Western Sahara »[14].

Historically, the reasons for the Spanish presence in Western Sahara was motivated to ensure the exploitation of the Saharan fishing ground through the possession of certain points on the coast, without any interest in gaining territory inside. This policy is known as the «sugar pylon» was a misguided indigenous policy, based exclusively «on the prestige that its [Bens] paternalism gave it with the nomads»[15].

In July 1946, the Franco regime created Spanish West Africa (AOE)[16], made up of the territories of Sidi Ifni(South of Morocco) and Western Sahara. This change in the administration of the territories that lasted until 1958, entailed a reinforcement of the military presence in this part of the northwest of the Maghreb. A presence that was limited to succinct surveillance of the coasts and borders, taking into account the economic precariousness of the region.

However, the slow awakening of the colonies began through the first investments in the fishing sector, or in the first studies that were carried out towards the exploitation of phosphates[17]. The position of delaying the decolonization of the Western Saharan territory, while waiting for an exit that would preserve Spanish interests was favoured by the discovery and commissioning of the Bou Craa phosphate deposits in 1963. Contrary to what happened in the colonization carried out by other powers, such as France or Great Britain, the colonial enterprise was undertaken by the Spanish administration in North Africa initially began with a more nationalist recovery of the « colonial grandeur » of the past that of real and certain interest in the wealth of the territory[18].

B-Western Sahara: the unfinished decolonization

People who benefit from the right to self-determination can be defined as all peoples who have a link with a colonial territory as defined by the United Nations[19]. The important aspect is therefore territorial.

In February 1956[20] the Secretary-General of the United Nations addressed the Spanish government, asking it to declare whether it was administering non-self-governing territories. The Spanish government did not respond until November 1958. It had declared that it did not have any non-self-governing territory and that it considered its possessions in Africa to be “Spanish provinces”[21].

However, the adoption of the most important decolonizing resolutions made by the General Assembly in 1960, Resolutions 1514 (XV) and 1541 (XV), push Morocco to inaugurate its policy of claims over  Western Sahara, believing that the self-determination of the Saharawi people will be acquired in favour of integration with Morocco. Thus, since the independence of Morocco in 1956, the idea of annexing Western Sahara and creating « Greater Morocco » was present in the minds of the Moroccan decision-makers and elite[22].

In addition, the first resolution of the special fourth committee[23] over the territories of Spanish Sahara and  Sidi Ifni was approved in 1964[24]. It expressed “regret” over the Spanish delay in applying Resolution 1514 (XV) of December 14, 1960, on the granting of independence to colonial countries and peoples. To this day, the Territory remains one of the 17 non-self-governing territories that have not yet exercised their right to self-determination listed by the United Nations; it is the only territory on the African continent that has yet to be decolonized[25].

It is in this sense, the General Assembly Resolution 2072(XX) asked for the first time the Spanish government “to immediately take the measures for the liberation from colonial domination of the territories”[26].

Thus, since 1964, the UN has shown increasing interest in the question of Western Sahara. The General Assembly seized the decolonisation committee, intending to study the situation regarding the application of the declaration on the granting of independence to colonial countries and peoples and to inform it about the existing situation in this territory.

Following Spain’s delaying tactics aimed at blocking the decolonization of Western Sahara, the General Assembly adopted an important resolution that established, for the first time, a referendum and the general conditions for its application[27].

In the same vein, in 1975 the ICJ issued an advisory opinion,[28] stating that Western Sahara was not a terra nullius in the 19th century. The area was inhabited by predominantly nomadic people,[29] politically and socially divided into tribes led by leaders recognized as legitimate representatives, who among other things signed the protectorate treaty of 1884 with Spain, which soon degenerated into the colonial rule.

The general conclusion of the Court, based on the multiple historical facts at its disposal, recognizes the existence of independent and autonomous Sahrawi tribes before colonization that had no ties with the Sultan of Morocco[30].

The Court excluded any form of territorial sovereignty over Western Sahara by Morocco or Mauritanie[31]. Also, the decision of the Court was reinforced by a visit in the same year by a UN mission, which concluded that there was an overwhelming consensus among the Saharawi population in favour of national independence and against integration with any neighbouring State[32].

The result of this mission will push the UN to recommend Spain to organize the referendum by the UN body. However, 1975 marks the blocking of the process of decolonization in Western Sahara by the signing of the Madrid agreements[33]between Spain, Morocco and Mauritania. This agreement is known as the Declaration of Principles of Madrid, which firstly, requires Spain to terminate the responsibility and powers over the territory as the administrating power. Secondly, to institute a temporary administration in the territory, in which Morocco and Mauritania will participate. Thirdly, the three states undertook to respect the opinion of the Western Sahara population and inform the Secretary-General of the content of the agreement[34].

The impossibility of a military solution to the conflict gradually pushed Morocco and Polisario towards external mediation. After two decades, it was observed that the 16-year of war between Morocco and the Polisario Front[35] was a war that no one could win. This is how in 1988 the Security Council adopted Resolution 621 (1988), which again assessed the question of the referendum [36]. In which “the Kingdom of Morocco and the Popular Front for the Liberation of Saguia el Hamra and Rio de Oro on 30 August 1988 to the joint proposals of the United Nations Secretary-General and the current Chairman of the Organization of African Unity (…) with a view to the holding a referendum for self-determination of the people of Western Sahara, organized and supervised by the UN in cooperation with the Organization of African Unity”[37].

After years of negotiations between the UN Secretary-General and the two parties, a decision to hold a referendum came through Resolution 690 (1991), in which the Security Council finally established “a United Nations Mission for a Referendum in Western Sahara” (MINURSO)[38] and, at the same time proposed that the transitional period could come into force, “no later than sixteen weeks after the General Assembly approves the budget for the Mission”[39].

However, the MINURSO mission has not yet been able to complete its main task, which is the organization of a referendum, apart from a ceasefire (which is currently in danger with the renewal of military hostilities between the two parties Morocco and the Polisario Front)[40].

It took several years before the Secretary-General of the United Nations, Kofi Annan, and his representative in the region, James Baker, succeeded in 1999 in concluding the question of the census of the persons entitled to take part in a future referendum which respects the initial settlement agreement[41]. The list, which had 86,000 voters, was again rejected by Morocco, which presented 130,000 appeals. The question of the census halted the resolution of the conflict because Morocco had felt that it was going to lose the referendum, given the very high degree of Saharawi nationalism[42] among the Saharawi people. In 2004, Morocco indicated that it would not accept any referendum proposing a referendum[43].

It can be observed, that the standard policy of the Security Council can be summed up in the terms of the following sentence, set out in Security Council resolution 1754 which was adopted in 2007. By asking Morocco to present “serious and credible” proposals and the parties to negotiate without preconditions, to reach a just and lasting solution and a mutually acceptable political solution, including self-determination of the people of Western Sahara[44].

Unfulfilled decolonization Western Sahara is currently the last African country, with the island of St-Helena, to be registered in the lists of the 4th Committee[45] of the General Assembly of the United Nations concerning non-self-governing territories, where recognizes the inalienable exercise of the right to self-determination populations. It is the largest non-self-governing territory in the world.

It appears clearly that since 1964 the question of the western Sahara is confined in the natural legal framework of the question of decolonization object of self-determination. This is why the obligation of non-recognition of illegal situations must be the rule in the case of Western Sahara.

II- The obligation of non-recognition of an unlawful situation: the case of Western Sahara 

The problem of recognition is even more complex, bearing in mind the inexistence of a higher authority in international law. This is the reason why theorists do not clearly articulate the difference between legal and political views regarding the issue of recognition[46].

It is in this sense, that we want to study the legal aspects of the question of Western Sahara( the character erga omnes of self-determination), to highlight the illegality of the decision of the American President Trump of the « Moroccan sovereignty » on Western Sahara.

A-The “Erga Omnes” Character of Self-Determination

The right to self-determination is widely recognized in the jurisprudence of the International Court of Justice (cases of Namibia, Western Sahara, East Timor, Kosovo) and is the subject of development by the Human Rights Council and the United Nations Human Rights Committee, Conventional bodies that, among others, monitor compliance with the International Covenant on Civil and Political Rights by the States that have ratified it. Finally, the right of self-determination is widely covered by international doctrine[47].

The analogy between the question of East Timor and that of Western Sahara is edifying in this direction, to understand the erga omnes character of self-determination because the two cases encountered the same difficulties in the effective application of the principle of self-determination. However, since 1999 East Timor has been an independent country, while Western Sahara is still under the colonial yoke.

However, the situation in East Timor has evolved abruptly. Indeed, before the internal changes that occurred in the Indonesian political and social system, and the political pressures coming from the Western bloc[48]. The talks held between Portugal and Indonesia in the last decades, favoured by the good offices of the Secretary-General, will bear fruit in the agreements of May 5, 1999, for the celebration of a self-determination referendum in East Timor. Thanks to these agreements, the referendum takes place on August 30, 1999[49], and the Indonesian troops withdraw from the eastern part of the island on the 30th of November, and the United Nations temporarily assumes the administration of the territory.

In the East Timor case, the ICJ took note that East Timor ‘remains a non-self-governing territory, and its people has the right to self-determination[50] and described Portugal’s assertion that the right of peoples to self-determination, as it evolved from the United Nations Charter has an erga omnes character as “irreproachable”[51].The right of peoples to self-determination and the corollary obligation of states to respect that right constitutes peremptory norms[52].

In that sense, states are obliged to promote, through joint and separate action, the realisation of the principle of equal rights and self-determination of peoples as inscribed in the UN Charter. And to assist the UN in carrying out its responsibilities entrusted to it by the Charter regarding the implementation of Article 1 of the International Covenant on Civil and Political Rights: “All peoples have the right to self-determination. By that right, they freely determine their political status and freely pursue their economic, social and cultural development”[53].

With the same idea, the ICJ drew from General Assembly Resolution 1514, to affirm that the right to self-determination requires “a free and genuine expression of the will of the peoples” to “freely determine their political status and pursue their economic, social and cultural development”[54]. In the same order of argumentation, the right also includes the right of a people to permanent sovereignty over their natural resources[55].

Moreover, Western Sahara has consistently been recognized as having the status of a Non-Self-Governing Territory by organs of the United Nations, members of the Security Council, and the members of the General Assembly in the various Resolutions on the subject of Western Sahara that have been passed during this period. And despite the occupation of portions of the territory by Morocco (80% of the territory) beginning in 1975, Western Sahara has remained on the list of Non-Self-Governing Territories[56].

The people from such a territory have the right to decide not only on the independence of that territory but also on the use of its resources[57]. This is the opinion of the UN, as asserted in its opinion of the Department of Legal Affairs on the natural resources of Western Sahara in 2002, the well-known Corell report, that any further exploration or exploitation « in disregard of the interests and wishes of the people of Western Sahara » would violate international law[58].

Further support for the right of the Sahrawi people to determine their future came from the European Court of Justice. The Grand Chamber finally decided the case in its judgment of December 21, 2016[59]. Therefore, the European Court of Justice declared that, according to the Charter of the United Nations, Western Sahara is not part of the sovereign territory of Morocco, and that no agreement signed between the EU and Morocco could be applied to Western Sahara without the consent of its people[60].

But the legal arsenal of the question of Western Sahara will be strengthened with the decision of the General Court of European Union on 29 September 2021[61], issued two judgments resolving two appeals filed by the Polisario Front against the Council decisions that approved two fishing and free trade agreements between the European Union and Morocco. The rulings have reaffirmed it is legally obligated to exclude the territory of Western Sahara from its agreements with Morocco. Indeed, Western Sahara’s status as a territory that is “separate and distinct” from Morocco (and the EU’s concomitant duty of non-recognition of Moroccan sovereignty over the territory). And the need to obtain the consent of the people of Western Sahara when entering into agreements relating to their territory.

In the same context, The Grand Chamber of the CJEU delivered its judgment on the Western Sahara Campaign case on February 27, 2018[62], 126, a highly symbolic date since the Sahrawi Arab Democratic Republic was proclaimed on February 27, 1976[63].

It seems clear and indisputable that the question of Western Sahara is a question of self-determination, where any action by third States must first consult the Saharawi people and their legitimate representative, the Polisario Front, to see the approval of any action in the Western Sahara territory.

B-The United States’ obligation not to recognize Moroccan sovereignty over Western Sahara

Peremptory norms or jus cogens currently constitute « the cornerstone of the progressive development of contemporary international law »[64], and therefore, insofar as they are superior to the will of the states, they imply the existence of a less voluntaristic international law.

The highly commented judgment of the I.C.J, dated February 5, 1970[65], relating to the Matter of Barcelona Traction Light and Power Company Limited, established the essential distention between erga omnes effects or « obligations of the States with the international community as a whole. » And obligations « arising concerning another State ». Next, the judgment adds that « by their very nature, the former concern all States. Given the importance of the interests at stake, it can be considered that all States have a legal interest in having those rights protected; therefore, the obligations, in this case, are obligations erga omnes « .

The obligations of States can have normative effectiveness concerning another State or for the entire international community (erga omnes effect). The efficacy of jus cogens norms is always erga omnes. In international law, the concept of erga omnes obligations refers to specifically determined obligations that states have towards the international community as a whole. Such obligations, as enumerated above, have been determined by the Barcelona Traction case, together with other subsequently developed obligations, such as the obligation to respect the principle of self-determination in the Case Concerning East Timor[66] and the Advisory Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory[67], and the erga omnes obligation prohibiting the use of torture which was recognized by the International Criminal Tribunal for Yugoslavia[68].

The multilateral dimension of the principle of self-determination can be reflected in any duty of non-recognition that accompanies it after the denial of the principle by an occupying State, generating obligations towards third States.

It should be noted that contemporary international law speaks of the limits of recognition, in particular the existence of an obligation of non-recognition of situations resulting from the violation of Article 2(4)of the UN Charter, which seems to have been accepted as one of the basic principles of international law today and is still under state practice[69]. The International Law Commission (ILC) has spoken out clearly against the issue of aggression in its work on the codification of the law of treaties. Accordingly, it states, « the Charter law concerning the prohibition of the use of force is in itself a striking example of a rule of international law which falls under jus cogens »[70].

Therefore, the current trend in customary international law is supported by the judicial analysis in the elaboration of an independent and autonomous rule of non-recognition concerning territorial gain resulting from a manifest act of aggression or use of force, particularly based on Article 2(4)of the UN Charter.[71] It should be known that, in the colonial situation, the administering states refuse to accede to self-determination[72].

However, it must be noticed that international organisations have never asked Morocco, which is a party to the 1949 conventions since its independence in 1956, to apply the international norms in force in the territory of Western Sahara. This reality, in my opinion, means a serious detriment to the Saharawi people in the exercise of their internationally protected rights, since Morocco occupied Western Sahara by force against the will of the Sahrawi people.

The first time that the UN made a clear statement concerning Western Sahara under Moroccan occupation was in 1979 when the General Assembly stated: “deeply deplores the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco and the extension of that occupation to the territory recently evacuated by Mauritania; Urges Morocco to join in the peace process and to terminate the occupation of the Territory of Western Sahara;”[73].

In the same, order of ideas, the International Law Commission Articles on the Responsibility of States for International Wrongful Acts (ARSIWA) provide that “No state shall recognize as lawful a situation created by a serious breach of an obligation arising under a peremptory norm of general international law”[74]. William Riphagen, the Third Special Rapporteur who first introduced non-recognition into the Law Commission’s work on the topic of state responsibility, described non-recognition as refusing to give an otherwise mandatory follow-up to an event that has taken place[75]. The same, Lauterpacht described the purpose of non-recognition as the following: “the object of the policy of non-recognition is not to render illegal an otherwise lawful and valid act; its object is to prevent the validation of what is a legal nullity”[76].

The institution of recognition, by its very nature, is a free and discretionary act that is subject to the will of each State, although contemporary international law has been discussing its limits, in particular on the existence of an obligation to non-recognition of situations arising through the vulnerability of article 2.4 of the UN Charter, which seems to have been accepted by the majority of the doctrine always following the practice of the States[77].

The similarity of the case of Western Sahara with that of Namibia is indisputable since they are two cases of self-determination. And the continued illegal presence of South Africa in Namibia is characterized as a “foreign occupation”[78] like the case of the Moroccan occupation of Western Sahara.  So, in 1971 the ICJ addressed an opinion on Namibia[79]. The ICJ recognized the illegitimacy and lack of legal validity of the presence of the Union of South Africa in Namibia. It insisted on states giving no aid and assistance to the Union of South Africa to maintain this illegal occupation. Also, states should not attribute legal effects to bilateral treaties concluded with the Union of South Africa on the territory of Namibia, a rule which may be extended to multilateral treaties, except those relating to humanitarian aid whose non-compliance could cause damage to the Namibian people.

The International Law Commission stresses that the obligation not to recognition applies « in the case of situations created by these violations, such as, for example, the attempt to acquire sovereignty over a territory through the denial of the right of peoples to self-determination. »[80]. The obligation of non-recognition « aims not only at the official recognition of these situations but also at the prohibition of all acts which would imply such recognition »[81].

Additionally, the obligation of non-recognition requires not to accredit diplomatic missions or special missions in South Africa whose jurisdiction extends to the territory of Namibia[82].

Finally, as Resolution 276 (1970) invites to join in the measures ordered by Security Council, the Court affirms that the declaration of illegality of the presence of South Africa in Namibia creates an illegal situation erga omnes, which can be described as a violation of a rule of international law[83].

On the other hand, the recognition of the Republic of Kosovo also demonstrated a degree of inconsistency and arbitrariness that raised questions about the role of international law in recognition processes, or even whether international law has any role in assessing the issue[84]. Two particular circumstances permeated the Kosovo Case. Firstly, the declaration of recognition by the United States of America, which attributed a sui generis character to the Kosovo Case, understanding that its recognition would not be governed by international standards[85]. Secondly, the silence of the I.C.J regarding the recognition of Kosovo in its 2010 Advisory Opinion stands out[86]. On the occasion, the Court responded to the question in a restrictive manner, avoiding any pronouncement regarding the recognition of the new entity. Secondly, the silence of the ICJ marks the recognition of Kosovo in its advisory opinion of 2010[87].

The non-recognition of illegal situations could protect the right of the Saharawi people to self-determination and their permanent sovereignty over their natural resources. Consequently, the United States must respect the right to self-determination of the Saharawi people and refrain from any illegal act contrary to the peremptory norms of international law. Thus, the obligation of non-recognition of Moroccan sovereignty over Western Sahara must prevail over political and economic interests by respecting the right of peoples to dispose of themselves.

Conclusion

Through the history of UN resolutions concerning the question of Western Sahara, one can detect a very important gap by the failure of the UN to insert a paragraph calling for the non-recognition of the incorporation of Western Sahara territory into Moroccan territory, until the Sahrawi people can choose their destiny democratically through a free referendum without any oppression.

As we have seen, recognition is discretionary and fundamentally political issued in the interest of the state. Therefore, the issue of recognition can be a great obstacle to the realisation of the right to self-determination of peoples as in the case of Western Sahara, since it will continue to be a political weapon and an instrument of pressure used by the superpowers to largely determine the course of world politics.

In this context, Trump’s declaration of Moroccan sovereignty over Western Sahara has no legal consequence, due to the nature of this conflict derived from the decolonization and due to the illegal occupation of Morocco of Western Sahara contrary to compliance with the norms of the international law in this matter. That said, such an unlawful situation of recognition may be a precedent in the annals of international politics, which could lead other states to recognize Moroccan sovereignty over Western Sahara and to sow anarchy in the international order.

Dr Ali El Aallaoui

— Notes de bas de page —


[1]Jorge Alejandro Suárez Saponaro, Sahara Occidental. El conflicto olvidado, Editorial Universitaria del Ejército, Buenos Aires,2016.

[2]You can see read more informations on the question of the self-determination of Western Sahara in, Sidi M Omar (2008), The right to self-determination and the indigenous people of Western Sahara, Cambridge Review of International Affairs, 21:1, 41-57, DOI: 10.1080/09557570701828584:  https://www.researchgate.net/publication/233134202_The_right_to_self-determination_and_the_indigenous_people_of_Western_Sahara    

[3]Ali El Aallaoui, Negotiating Western Sahara: between international law and geopolitical interests, 28 March 2017, openDemocracy: https://www.opendemocracy.net/en/north-africa-west-asia/western-sahara-united-nations-international-law-and-geopolitics/.

[4]Hakim Boulhares, La gramatica geopolitica de Francia respecto al Sahara Occidental, in Isaias Berrenada Raquel Ojeda ,Sahara occidental 40 anos después,  Libros de la Catarata, 2016, pp.221-229. 

[5]Laura Feliu Martinez, Estados Unidos y la cuestion del Sahara Occidental, in Isaias Berrenada Raquel Ojeda ,Sahara occidental 40 anos después, Libros de la Catarata, 2016, pp205-220. 

[6]Carolina Chavez Fregoso and Nikola Zivkovic, ‘Western Sahara: A Frozen Conflict’, Journal of Regional Security (2012), 7:2, pp.139–150.

[7]In a statement published on December 10, 2020, the United States « recognizes Moroccan sovereignty over the entire territory of Western Sahara ».Donald Trump claims to resolve a dispute last colony in Africa defying the principles of international law and without consulting one of the parties, in this case the Saharawi people, represented by the Polisario Front.

[8]Ian Brownlie. African Boundaries: A Legal and Diplomatic Encyclopedia, London, 1979, pp.147-158.

[9]Adolfo Miaja De La Muela, La emancipación de los pueblos coloniales y el Derecho Internacional, 2.ª ed., Tecnos. Madrid, 1968, p. 35.

[10]Tomas García Figueras, Santa Cruz de Mar Pequeña-Ifni-Sahara (la acción de España en la costa occidental de África), Fe, Madrid, 1941, p.134.

[11]Earlier, in 1845, Sheikh Beiruk, who dominated the Tekna region (southern Morocco) had made commercial deals with the Spanish Cumella, you ncan see in that sense the book of Morillas Javier, Sahara Occidental: desarrollo y subdesarrollo, Prensa y Ediciones Iberoamericanas, Madrid, 1990 (2a ed.), p. 64.

[12]Martínez Milán, Jesús: « Intentos de explotación del banco pesquero sahariano 1850-1914 », in Víctor Morales Lezcano (Coord.): II Aula Canarias y el Noreste de Á frica, Cabildo Insular de Gran Canaria, Las Palmas, 1988, p. 371 sqq. 

[13]Bécker Jerónimo, Historia de las relaciones exteriores de España durante el siglo XIX, t. III (1868-1900), Voluntad, Madrid, 1926, p. 579-580.

[14]Francisco Villar, El proceso de autodeterminación del Sáhara Occidental, Fernando Torres, Valencia, 1982, p. 17. 

[15]Fernandez Aceytuno Mariano,  Ifni y Sáhara. Una encrucijada en la historia de España, Palencia, Simanca Ediciones, 2001, pp. 326-327.

[16] aoe

[17]Martinez Artinez Milan, Jesús Mª: «L’Espagne face á la décolonisation: Ifni et Sahara occidental, deux exemples de colonialisme résiduel», in AGERON, Charles-Robert y MICHEL, Marc: L’ère des décolonisations. Paris, Karthala CNRS, 1995, pp. 324-327.

[18]Maurice Barbier, Le conflit du Sahara occidental, Ed. L’Harmattan, París, 1982, p. 44.

[19] Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, Oxford Political Theory, Oxford University Press, USA, 2007.

[20]Spain enter into the United Nations on December 14, 1955, see the interesting work on the decolonization of the Western Sahara from the historical point of view of Alberto Maestre Fuente, un pueblo abandonado los enganos en la descolonizacion del Sahara Occidental, Chiado Books, Espana, 2018, p.98.

[21]Sevillano Castillo, R, los origines de la descolonizacion africana a través de la prensa española (1956-1964), Madrid, Secretariat de Estado para la cooperación Internacional y para Iberoamerica, Ministerio de Asuntos Exteriores(1986),p.50

[22]Ali Yata, Le Sahara occidental marocain à travers les textes, Volume 1, Editions al-Bayane, Casablanca, 1982

[23]The Fourth Committee deals with various subjects such as questions relating to decolonization, information, peacekeeping, monitoring of special political missions. The Fourth Commission also reviews mine action every two years and the University for Peace every three years.

[24]ORGA : Nineteenth period of sessions, Annexes, Annex No.8, 1st part, (A/5800/Rev.1), Chapter IX, No.112.

[25]Oscar Güell, Western Sahara: Africa’s last colony, in OpenDemocracy, 2 January 2015: https://www.opendemocracy.net/en/opensecurity/western-sahara-africas-last-colony/.

[26]ORGA : Nineteenth period of sessions, Annexes, Annex N°.8,1 st part, (A/5800/Rev.1),Chapter IX, N°.112.

[27]The Resolution of December 20, 1966 asks Spain: « a) Create a favorable political climate for the referendum to take place on a totally free, democratic and impartial basis, allowing, among other things, the return of exiles to the territory; b) Take all necessary measures to ensure that only the indigenous inhabitants of the territory participate in the referendum; c) Refrain from any action that may delay the process of decolonization of the Spanish Sahara; d) Provide all the necessary facilities for a United Nations mission to actively participate in the organization and holding of the referendum « .

[28]International Court of Justice (1975), “Western Sahara Advisory Opinion”, ICJ Reports.

[29]In international law, « there is no accepted definition of the word ‘people’ or means by which it can be defined with certainty. » Moreover, the Dictionary of International Law Terminology is limited to talking about the right of peoples to self-determination, thus avoiding entering into futile or hopeless debates, which have long been engaged on the notion of people and which have given rise to different doctrinal visions. In any case, peoples are defined by the rights and obligations which are recognized to them by international law, which takes into account their concrete situation: colonized peoples, peoples integrated into a democratic State which recognizes their rights, peoples constituted as a State. Without doubt and from what precedes the territory of the Western Sahara is lived by a people under colonial domination since 1884.

[30]Roberto Barral Blanco e Ruiz Miguel Carlos, « La lógica del Tribunal de La Haya »: https://www.researchgate.net/publication/303857764_La_logica_del_Tribunal_de_La_Haya

[31]For more details to know the Mauritanian position which had led him to enter the conflict of the Western Sahara see the work of the former Mauritenian president, Moktar Ould Daddah, La Mauritanie Contre Vents Et Marées, Karthala, 2003.

[32]Emboirik Ahmed Omar, El movimiento nacionalista Saharaui de Zemla a la Organización de la Unidad Africana, Editorial Mercurio, Madrid, 2017.  

[33]To find out how the Madrid accords blocked the decolonization of the Western Sahara:The political declaration stipulates that Spain will transfer the administration of Western Sahara (but not sovereignty) that transfer is made to a temporary tripartite administration composed of the aforementioned States adding several secret annexes. Spain, as the administering power, had only two options to extricate itself from its responsibility: to proceed with decolonization, and this could only be done by a referendum of self-determination, or not to decolonize, but to transfer the administration of the territory to the Trusteeship Council. , in accordance with Article 77.1.c of the United Nations Charter. Spain attempted to decolonize doing neither, so it incurred a double illegality. In the first place, to avoid the compulsory referendum of self-determination. The UN resolutions, confirmed by the judgment of the International Court of Justice of October 16, 1975, stipulated that the decolonization of the Sahara should be done by referendum of self-determination. The Madrid Agreement violates this international law. 

[34]Carlos Ruiz Miguel,Los Acuerdos de Madrid, inmorales, ilegales y políticamente suicidas, la ilustracion liberal, N°26, : https://www.clublibertaddigital.com/ilustracion-liberal/26/los-acuerdos-de-madrid-inmorales-ilegales-y-politicamente-suicidas-carlos-ruiz-miguel.html.

[35]Ahmed Baba Miske, Front Polisario : l’âme d’un peuple, Paris, Éditions Rupture, 1978.

[36]Resolution 621(1988) of Septembre 20, approved unanimously during session (ORSC) Prior to the approval of UN Resolution the SG exposed to the members of the Council the main characteristics of the Settlement Plan(ORSC:S/PV.2826).

[37]It is clear that one of the main reasons of the Moroccan government to initiate the peace process was the enormous economic cost that would imply to maintain the war. John Damis, “Morocco and the Western Sahara”, Current History, 89(546), Apr.1990, p.166 and follwong. 

[38]For more information on MINURSO’s role, see its website http:// www.un.org/en/peacekeeping/missions/minurso/

[39]Resolution 690(1991)à of april 29,1991, approved unanimously April 29,1991, at the 2984th session.See Maddy Weitzman, B “conflict and conflict management in the Western Sahara: is the endgame near?”, Middle East Journal, n° 45, Autumn 1991, pp.594-607.

[40]International Crisis Group Briefing 82 / Middle East & North Africa 11 March 2021,Time for International Re-engagement in Western Sahara:https://www.crisisgroup.org/middle-east-north-africa/north-africa/western-sahara/b82-time-international-re-engagement-western-sahara.

[41]To that respect, the SG stressed that the census lists of the population of 1974 and the supplement listing of names of additional personas expected to reach 18 years of age by 31 December 1993 were ready at the end of November 1993.(ORSC/S/1994/283,par.16 and 19).

[42]Tony Hodges , The Origins of Saharawi Nationalism, Third World Quarterly Vol. 5, No. 1 (Jan., 1983), pp. 28-57.

[43]For more details in order to know the history of the blockade of the UN process in Western Sahara and the Moroccan position against any proposal for a solution that respects the self-determination of the Saharawi people see, Anna Theofilopoulou, The United Nations’ Change in Approach to Resolving the Western Sahara Conflict since the Turn of the Twenty-First Century, in Raquel Ojeda-Garcia • Irene Fernández-Molina • Victoria Veguilla, Global, Regional and Local Dimensions of Western Sahara’s Protracted Decolonization, When a Conflict Gets Old, Palgrave Macmillan,2017, pp:37-51.

[44]Resolution 1754 of the Security Council of 30 April 2007.

[45] For the role of the Fourth Committee of the United Nations General Assembly, see its website http://www.un.org/fr/ga/fourth/index.shtml

[46]To have a very detailed idea on the difference between the situations of self-determination, secession and recognition see the following work: Jack Holmberg Forsyth, Self-Determination, Secession, and 

State Recognition A Comparative Study of Kosovo, Abkhazia, and South Ossetia, Master’s Thesis, Supervisor: Ulf Linderfalk, Faculty of Law Lund University, spring 2012: https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=2542852&fileOId=2688640

[47]Denis Gingras, L’autodetermination des peuples comme principe juridique, Laval théologique et philosophique, 53, 2 (juin 1997) : 365-375 . https://doi.org/10.7202/401080a: https://www.erudit.org/fr/revues/ltp/1997-v53-n2-ltp2158/401080ar.pdf.

[48]James Cotton, East Timor, Australia, and Regional Order: Intervention and its Aftermath in Southeast Asia , London: Routledge Curzon, 2004.

[49]An important book to know the whole process of negotiations which led to the independence of East Timor          Jamsheed Marker, East Timor A Memoir of the Negotiations for Independence McFarland, 2003.

[50]Case concerning East Timor (1995) ICJ Reports, at para 31.

[51]Judgement, para 29.

[52]Bruno Simma, the Charter of the United Nations: a commentary, Oxford University Press, Oxford, 2 editions, 2002, Vol.1p.57.

[53]Article 1(3) common to the international Convenant on Ecconomic, Social and Cultural Rights(1976) and the International Convenant on Civil and Political Rights(1976), Western Sahara Advisory Opinion, op.cit note 4, at p.33.para.58.

[54]Western Sahara Advisory Opnion, op.cit.note4, at p.31, para55.

[55]Declaration of permanent Sovereignty over natural Ressources, UNGA Resolution 1803(XVI), 14 december 1962.Permanent sovereignty over natural ressoruces as a right of self-determination is stipulated in artle 1(2) of the international Convenant on Civil and Politics Rights (1976). 

[56]In an opinion issued January 29, 2002, Letter dated January 29, 2002, from then Undersecretary General of the United Nations for Legal Affairs Hans Corell to the President of the Security Council, S/2002/161 (February 12, 2002) (―Corell Opinion‖) at 2. 

[57]See on that sense, New Zealand High Court affirmed in a ruling issued yesterday that Morocco has no sovereignty or administrating power over the occupied territory of Western Sahara in https://www.spsrasd.info/news/en/articles/2021/03/16/32090.htmln 

[58]“Letter date 29 January 2002 from the Under Secretary General for legal Affairs, the legal Counsel, addressed to the President of the Security Council”, United Nations, 12 Feb.2002, http://www.wsrw.org/files/dated/2008-10-22/un_report_on_legality_oil.pdf.

[59]CJEU, judgment of the Court (GC), 21 December 2016, Conseil v. Front Polisario, case C-104/16 P.

[60]http://curia.europa.eu/juris/document/document.jsf?text=&docid=186489&doclang=EN.

[61]https://curia.europa.eu/juris/document/document.jsf?text=&docid=246702&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=3017299.

[62]CJEU, judgment of the Court (GC), February 27, 2018, Western Sahara Campaign, case C-266/16.

[63]Mohamed Fadel ould Ismaïl ould Es-Sweyih, La république sahraouie, L’Harmattan, Paris,2001.

[64]Grigory Ivanovich Tunkin, Theory of  international law.  Harvard, 1974 , pág. 15.

[65]I.C.J. Reports, 1970, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (1962–1970), Second Phase, Judgment, I.C.J Reports 1970.

[66]I.C.J. Reports, 1995 (Portugal v. Australia).

[67]I.C.J. Reports, 2003 (Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), paras. 88, 155, 156. Also see: I.C.J. Reports, 1995 (Portugal v. Australia). Also see: Geoffrey R. Watson, The ‘‘Wall’’ Decision in Legal and Political Context, 99 American Journal of International Law, 6 (2005).

[68]Prosecutor v. Anto Furundzija, Decision of December 1998, para. 151.

[69]Orna Ben- Naftali, Aeyal M. Gross, & Keren Michaeli, Illegal Occupation: Framing the Occupied Palestinian Territory , 23 Berkeley J. Int’l L . 551 ( 2005 ).

[70] Paragraph 1 of the Commission’s commentary on article 50 of its draft articles on the law of treaties, Yearbook of the I.L.C, 1966-II, p. 270.

[71]The Res.2625 of the GA, which states” No territorial acquisition resulting from the threat or use of force shall be recognised as legal –as (o)ne such obligation under customary international law.

[72]Christian Charbonneau,Le droit des peuples à disposer d’eux-mêmes : un droit collectif à la démocratie… et rien d’autre, Revue québécoise de droit international Année 1995/ 9/, p. 114.

[73] A/Res.34/37, of 21 november, 1979.

[74]Article 41(2) of the International Law Commission’s Article on State Responsibility, GAOR, Fifty-sixth Session, Supplement 10 (A/56/10), p.286.

[75]Yearbook of the International Law Commission, 1980, Vol.2, part I, p.117, para.54.

[76]H. Lauterpacht, Recognition in international law, CAMBRIDGE University Press, Cambridge, 1947, p.413.

[77] Perez Gonzalez , «  la subjetividad internacional(I) », in Diez De Velasco , Instituciones de Derecho Internacional Publico, 12) ed., Madrid, 1999, 217-239, pp.229..230.

[78]A/6897, 10 November 1967. Following the revocation of the mandate, the Council was established by the General Assembly (GA Res 2248(S-V), 19 May 1967) to administer the mandated territory until independence.

[79]Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion ,1971 I.C.J. 16 (June 21).

[80]International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts and Commentaries thereto, 2001, p.309.

[81]Ibid.,p.309.

[82]Ibidem.

[83] I.C.J., Collection 1971, pp. 16 and following.

[84]The Republic of Kosovo is currently officially recognized by 111 countries. “Who recognized Kosova? The Kosovar people thank you-Who recognized Kosovo and who recognizes Kosovo ”, available at: http://kosovothanksyou.com/.

[85] That is the position held by the North American government, one of the biggest sponsors of Kosovo’s independence since the beginning of the international administration of the province. United States of America, “U.S. recognizes Kosovo as Independent State ”, February 18, 2008, available at: http://2001-2009.state.gov secretary / rm / 2008/02 / 100973.htm

[86]International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports, 2010, pp. 403-453.

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