THE DISPUTED TERRITORY OF WESTERN SAHARA

A dissertation submitted by Pablo Sez in partial fulfilment of the requirements for the Master of Studies in International Relations at IE Business School.

Pablo Sez Herrera Instituto de Empresa University. Leopoldo Calvo-Sotelo, Advisor

13th July 2012

Contents Introduction Chapter One: Historical and Political Background Geographical Situation. Society in Western Sahara Pre-Colonial Period The Spanish Sahara War in the Desert United Nations Mediation Recent developments

Page 4

4 7 9 29 30 35

Chapter Two: Legal Issues A Vanishing right for Self-Determination? Self-determination Revisited 39 The Legality of the Madrid Accords The Nationality of the Sahrawis The Exploitation of Western Sahara Natural Resources The New Moroccan Constitution of 2011 Conclusion Selected Bibliography 46 50 53 58 60 63

Acronyms
AL AU BOE CAM CSCE FAR FLN FLU ICJ Arme de Libration African Union Boletn Oficial del Estado Confins Algro-Marocains Conference on Security and Cooperation in Europe Forces Armes Royales Front de Libration Nationale Front de Libration et de lUnit International Court of Justice

MINURSO Misin de las Naciones Unidas para la Organizacin del Referndum en el Shara Occidental (UN Misin for the Referendum in Western Sahara) MPAIAC Movimiento para la Autodeterminacin y la Independencia del Archipilago Canario (Movement for the Self-Determination and Independence of the Canary Archipelago) NATO OAU POLISARIO PUNS SADR North Atlantic Treaty Organization Organisation of African Unity Frente Popular para la Liberacin de Saguia el-Hamra y Ro de Oro Partido de la Unin Nacional Saharaui Saharawi Arab Democratic Republic

UN

United Nations

Introduction
Western Sahara is Africas last colony: An anomaly in international law since a matter of decolonization has been dragging in the international agenda for 37 years. Thomas Franck captured the essence of the conflict that constitutes a vestige from the Cold War: In the entire four decade history of decolonization of a billion people, there were only 3 exceptions to this rule of decency (Self-determination): New Guinea, East Timorand the Western Sahara which was occupied by Morocco against the evident wishes of its inhabitants1. Contrary to East Timor which eventually gained independence in 2002, Western Sahara stands in a deadlock derived from the abandonment by Spain, the former colonial power, the fruitless efforts of the UN and the intransigent positions of both Morocco (integration) and Polisario (independence) that have thwarted all the proposals to settle the issue of the decolonization of Western Sahara.

Chapter One: Historical and Political Background

Geographical Situation. Society in Western Sahara
The Western Sahara is located along 1110 kilometers of the African Atlantic coast. Its surface extends to 266,000 square kilometers, roughly about the size of Great Britain. It borders with Morocco to the north, Algeria to the east and Mauritania to the south. It is one of the least populated countries in the world. The population is estimated around 500000. Its territory consists of flat desert land despite the existence of low mountains in the northeast and the south.
1

Franck, Thomas. Theory and practice of decolonization in war and Refugees edited by Richard Lawless and Laila Monahan, 11 New York: Pinter 1987.

The desert climate is hot and dry with extreme temperature variations. It presents continental features along the Atlantic coast; rain is rare; cold offshore air currents produce fog and heavy dew. Arable land and crops are practically nonexistent which explains the traditional nomadism of its inhabitants. Its natural resources include iron ore, potash, sand and large phosphate deposits in the region of Bucra. According to the International Trade Center (World Bank) Morocco and the Western Sahara mines managed by the Office Chrifien des Phosphates (OCP) produced 27 million metric tons in 20102. Morocco has become the second largest producer in the world after the US. Moreover, Philip Szczesniak3 points out that two oil companies, Kerr McGee and Total Fina Elf conducted oil research under its seafloor waters and their findings indicate that there seems to be rich reserves of oil and gas off the coasts of Western Sahara. Besides, we cannot forget the rich fisheries whose exploiting rights are also disputed and constitute a top industry in Moroccos economy. The territory is divided into two regions: Saguia el Hamra in the north, bordering with the former Spanish protectorate of southern Morocco, and Rio de Oro which reaches the Mauritanian border and occupies 2/3 of the territory. Morocco labels Western Sahara as its southern provinces. Morocco controls 80% of the territory whereas the rest, separated by 2400 km of defensive sand walls or berms, is under the authority of the Saharwi Arab Democratic Republic (SDAR). Most of the population concentrates in El-Aain, the capital and largest city, with 200.000 people. Other important cities are Smara, Dakhla (former Villa Cisneros) and Boujdour. Tough the population is the Saharwis, not all the ethnic Saharwis are Western Saharans. There is a significant population of ethnic Saharwis living in Southern Morocco in the Tarfaya Strip, in Northern Mauritania and Western Algeria. Morocco rejects the idea that the Saharwis constitute an ethno-nationalist group.
2 3

International Trade Centre. http://www.intracen.org/country/morocco/ Phiplip Szczesniak: The Mineral industries of Morocco and Western Sahara. US Geological survey Minerals yearbook 2001.

Instead, they consider them to be des morocains comme les autres, another Moroccan ethnic minority like the Amazigh and Rifeos. War has upset the demographic balance in Western Sahara. At present, Moroccan settlers clearly outnumber the indigenous Saharwi population. Half of the native population lives in refugee camps in Algeria since the Moroccan annexation of the territory in 19764. Saharwis are socially grouped in tribes or confederations that have close cultural affinities with Mauritanians. Among the tribes we distinguish the Erguibat, Izarguien, Ulad Delim, Ulad Tridarim, TahalatTribes have traditionally established relations of dependence and hierarchy5. The deep Arabization of Western Sahara includes two major features: First, the linguistic influence of Arabic deriving in a particular dialect called Hassaniyyah. Second, the adoption of a moderate version of Sunni Islam as the predominant religion.

Stephen Zunes & Jacob Mundy, Western Sahara: War, Nationalism and Conflict irresolution, Syracuse, 2010. Introduction, Page XXI. 5 Alejandro Garca, Historia del Sahara y su conflicto, Catarata,2010. Page 11.

Figure: Western Sahara, Refugee Camps in Algeria

Source: Congress Research Service graphics.

Pre-Colonial Period
Berber nomad tribes who were converted in the Islam as of Arab expansion in the VIII century firstly inhabited Western Sahara. The area saw the emergence of great empires, which fashioned the current Saharwi identity6. Migrations into the area by Arab Bedouins and Yemeni Maquili settlers were the consequence of the invasion of the short-lived Almoravid Empire, the Almohads and the Merenids (SXI-XIII). As of the fifteenth century Spain drew its attention to Africa once the Reconquista had been accomplished with the capitulation of Granada in 1492. Although Spain had already occupied the Canary Islands at the turn of the XV century, the Portuguese had
6

. Stephen Zunes & Jacob Mundy Western Sahara: War, nationalism and conflict irresolution. Syracuse University Press. 2010, page 95-96.

launched themselves into a quest to reach Asia sailing along the Atlantic coast of Africa. Spains interest in Africa was defensive. The Catholic monarchs aim was to prevent another invasion as occurred in 711. In doing so, Spain established garrisons and Spanish settlers in enclaves sited in North Africa: Melilla, Oran and Mazalquivir. On the other hand, the Western Saharan coast became of interest not only to protect the Canary Islands but also for commercial reasons. The first Spanish settlement in the area was founded Santa Cruz de Mar Pequea7 in 1476. Nevertheless, Spain lost interest in the region when Carlos I crown king of Spain was elected German emperor in 1519.Spain became the greatest power in Europe until 1648 and the master of a vast empire in The Americas for three centuries. The interests of Spain in the Atlantic African coast focused on keeping security for Spanish fishermen against pirates and protecting slave trade. The authority of the Sultan of Morocco in Western Sahara was limited. Morocco just sought to secure the trade routes connecting to Timbuktu and the black kingdoms but there was not an effective occupation of the territory. However, many tribes accepted submission to the authority of the Sultan derived from a pledge of allegiance. Nemo Potest Exuare Patriam has predominantly grounded the Moroccan claim on the territory. However, Moroccan Sovereign control was nonexistent beyond the DraaRiver. It is clearly asserted in the Treaty of Marrakesh (1767) between Carlos III and the Sultan Mohammed Ben Abdallah8. The Alawi Sultan affirms in the document, article 18: His majesty warns the inhabitants of the Canaries against any fishing expedition to the coasts of Oued Noun and beyond. He disclaims any responsibility for the way they may be treated since it is not under his authority9 Furthermore, the Moroccan Sultan Hassan I in 1875 reiterated to Britain that his influence did not extend to Cap Juby10, where British settlers had established a trade post.

7 8

John Ruescas, The Western Sahara conundrum. Cambridge University, 2007, page 21. Jnos Beseny, Western Sahara, Publikon, Pecs 2009, page 48. 9 Tony Hodges, The Roots of a desert war, Lawrance Hill & Company, 1983, page 31. 10 Stephen Zunes & Jacob Mundy, Western Sahara, OP. Cit., page 99.

The Spanish Sahara

Spain regained strategic interest in Africa in 1860 when the forces of ODonnell and Prim carried out a brilliant military campaign defeating the Moroccan army. Spain obtained in the treaty of Tetuan, the region of Villa Bens (also called Cap Juby, Tarfaya Strip or Tekna ) and Ifni. The Spanish bid to recreate an empire, which would embody the former Hispania Tingitana, had another important issue during the Berlin Congress (1885). Nevertheless, Spain was a second-rate power and the Scramble for Africa granted her the remains agreed to by France and the United Kingdom. France took the bulk of the territory to form the French West Africa and ceded Western Sahara to Spain. When Spaniards arrived in the Western Sahara they negotiated with the local chieftains in the Oued Noum and the emir of Adra in 1884-188611. The great explorer Emilio Bonelli managed to obtain the allegiance of the nomadic tribes of Western Sahara to the Spanish crown12. Spain was recognized as the colonial sovereign of the Spanish Sahara, composed by the territories of Ro de Oro and Saguia el-Hamra and Southern Spanish Morocco in the Berlin Congress. Subsequently, Spains claims to establish a protectorate in The Rif to spread the Spanish possessions of Ceuta, Melilla and Tetuan were also recognized by the agreement with France in 1900, the Algeciras Act in 1906 and the Franco-Spanish treaty signed in 1912. The treaty of Fez (1912)13 declared that Saguia el Hamra was not under the authority of the Moroccan government and constituted a separate administration from the Spanish protectorate in Morocco. It established the boundaries between both Spanish and French Protectorates in Morocco. Additionally, it established the status for the territory south off the protectorate: The Spanish Sahara (art 2.6) which would constitute Spanish West Africa (1946). The French government did not established clear boundaries between Morocco, Mauritania and Algeria until 1956 when Spain and France relinquished its administration over Moroccan territory to Mohamed V who became king.
11 12

Thompson. The Western Saharans: Background to conflict, 1980, page 171. Jnos Beseny, Op. Cit., pag 49. 13 French-Spanish Convention November 27th 1912.

The new independent Morocco rejected its frontiers on the grounds that it had historical claims of sovereignty over the area of Tinduf and Bacha in Algeria, Mauritania, Western Sahara and the rest of the Spanish territories in Northern Africa. It gave rise to Moroccan irredentism that argued that the nation had artificially been carved up, mutilated by the European colonial powers. Stephen Zunes remarks upon the fact that for Moroccan nationalism colonialism adding insult to injury invented Spanish Sahara and to a lesser extent Algeria, largely at the expense of the pre-colonial Moroccans state alleged territory14. The father of this theory of Greater Morocco, Allal El Fassi, was the leader of the nationalist party Istiqal. Moroccan foreign policy embraced this thesis almost immediately; on October 14th, 1957 in the debate of the 4th Committee of the UN General Assembly. Indeed, King Mohamed V adhered to this line of thought in a speech on 25 February 1958 in Mhamid15. The Sultan stated that Morocco had the task to restore the old Almoravid Empire or Greater Morocco. The Moroccan authorities found in this theory a useful tool to mobilize the masses and eliminate rival parties. On November 10 1958 the Ministry of the Interior created a Directorate of Saharan and Borders affairs headed by El Fassi himself16.Its aim was the annexation of the mutilated territories of the motherland.

14 15

Zunes & Mundy,Op. Cit. Introduction page 23. Tony Hodges, The Western Sahara File, Third World Quarterly, Vol. 6, No. 1 (Jan., 1984), pp. 74-116, Taylor & Francis, Ltd. 16 Stephen Zunes & Jacob Mundy, Op. Cit., page 36.

10

Figure: The Greater Morocco

Source: GobalSecurity.org

In the aftermath of its independence, the government in Rabat refrained from containing the attacks against Ifni and French positions in Mauritania and Algeria by the Moroccan Army of Liberation (AL) in 1957 that sought to expel foreign powers from Northern Africa. The kingdom of Morocco alleged that the AL militias were uncontrolled bands although there were clear links between the AL and the Moroccan army17.A common military action by the French and Spanish Army-Operation Ecouvillon/Teide-disbanded the Moroccan Army of Liberation (AL) and appeased the uprising of the Saharawi Ejrcito de Liberacin del Sahara in Spanish Sahara that had seized the opportunity to expel the Spaniards from the territory. Eventually, Morocco cooperated with Spain and France to carry out a military strike against the insurgency. Rabat feared a French military intervention in Southern Morocco. Spain in a grateful gesture turned over Tarfaya to the Sultan rewarding his contribution to pacify the region in 1958.
17

Carlos Ruiz Miguel. El Sahara Occidental y Espaa: Historia, Poltica y Derecho. Anlisis crtico de la poltica exterior espaola, editorial Dykinson, Madrid, 1995.page 57-59.

11

The expansionist dream of the Greater Morocco endured a hard blow when the French conceded full independence to Mauritania in 1959. The government of Morocco refused to recognize the Mauritanian state until 1970. France had settled the question of the Confins Algro-Marocains favoring Algeria when granting independence to Morocco in 195618. The dispute would bring about the War of the Sands in 1962-1963 because of the invasion of Bechar and Tinduf by the Moroccan army in the aftermath of the Algerian independence. The defeat of the Moroccan army fed revanchism against Algiers19. The Spanish had started to settle along the Atlantic coast of Western Sahara just before the Congress of Berlin although Spain did not speed up colonization until the late 20s. They had founded Villa Cisneros (Dakhla) in 1884 and La Gera was occupied a year later. El Aain became the colonial headquarters in 1934 and Spain extended its presence in the inner desert lands controlling the religious city of Smara in 1930.The interior of Western Sahara bordering to French Sahara was finally occupied before the outbreak of the Spanish civil war in 1934. As of the 1950s the nomadic population started to settle in certain areas, and the urbanization of towns and villages sped up as the territory was living an important economic development thanks to exploitation of phosphates deposits discovered in the late forties. In 1958, Spain unified the territories of Saguia el Hamra and Ro de Oro to form the province of Spanish Sahara (Decreto de Provincializacin del Sahara, January 10th 195820). Ifni and Spanish Sahara integrated the Gobierno General del Africa Occidental Espaola. Assimilation sought to mitigate the pressure for decolonization such as the French did in Algeria and the Portuguese in the African colonies. Western Sahara and Ifni were allocated representation in the Spanish Parliament called Procuradores en Cortes.
18 19

Tony Hodges, Western Sahara: the Roots of a Desert War, Op. Cit., page 98. Virginia Thompson & Richard Adloff, The Western Saharans: Background to Conflict, Taylor & Francis, 1980, page 219. 20 Carlos Ruiz Miguel, El Sahara Occidental y Espaa: historia, poltica y derecho, anlisis crtico de la poltica exterior espaola, Dykinson, 1995, page 45-46.; Francisco Villar Op. Cit. Pages 75-77.

12

The Saharwi (who enjoyed Spanish Nationality and Spanish Identity Card) voted in the national referendum on 14th December 1966 to approve the 7th Fundamental Law of the State (Ley Orgnica del Estado1/1967). The administration was inspired in the model of local government for The Canary Islands: Cabildos Provinciales y Ayuntamientos (Government of the province and City Councils). It was completed with two Saharwi traditional institutions: Fracciones Nmadas and the Yema or tribal council. The General Governor of Sahara had military powers and supervised the functioning of the civil administration. In 196921 the Spanish government returned the enclave of Ifni to Morocco expecting to appease the demands on Spanish Sahara and the enclaves. They were proved to be wrong. Spain was reluctant to decolonize the Spanish Sahara. In 1961 the UN included Western Sahara in the list of non-self-governing territories according to chapter XI of the UN Charter. The General Assembly urged the Spanish government to foster its decolonization and the exercise of the legitimate right of self-determination by its people22. Madrids position argued that the African territories, as provinces of metropolitan Spain were not subject to self-determination. The Special Committee and the General Assembly put pressure on the question23. The Ambassador to the UN, Pinis eventually accepted to apply self-determination24 in the territory. Within the Spanish government there were two opposed political visions on Western Sahara. On one hand, Fernando Castiella, Minister of Foreign Affairs and the Spanish diplomacy backed the independence of the Spanish Sahara. Lesprit des temps imposed decolonization25. Castiella sought to avoid the costly colonial war that would lead Portugal to anarchy. Besides, it represented an asset to negotiate the status of Gibraltar and assemble support for its claim against Great Britain. The UN had already recognized the British enclave in Southern Spain as a colony in 1966.In 1967 the General Assembly deplored the

21

January 4th 1969, treaty of Fez .Spain returns Ifni which had been ceded in appliance of art 8 Tetun treaties 1860. 22 General Assembly Resolution 2027(XX), 1965. 23 Francisco Villar, El proceso de Autodeterminacin del Shara, Fernando Torres Editor, 1982, page 126. 24 Ruiz Miguel. Op. Cit., page79. 25 Jos Ramn Diego Aguirre, Historia del Sahara Espaol. La verdad de una traicin, Kaydeda Ediciones, Madrid, 1988.Page 590.

13

holding of a self-determination plebiscite in Gibraltar. Instead, the UN insisted that the final status of the Rock should be reintegration in Spain. On the other hand, General Franco and the Prime Minister Carrero Blanco disliked the idea of an independent Sahara very much26. For them, there was no other option that integration to Spain. Finally, we must bear in mind other political figures that backed the idea of ceding the Sahara to Morocco. General Muoz Grandes who had a gathering with the leader of Istiqual and founding father of the theory of Greater Morocco El Fassi supported Moroccan claims on Spanish Sahara27. Jos Solis, the Secretary General of the National Movement, managed the assets of King Hassan II in Spain28. He was the facilitator with the Alawi kingdom given his close relation with King Hassan. Finally, Antonio Carro, Minister of the Prime Ministers Office in 1975 also lobbied for Morocco in the halls of El Pardo29. As of 1973, they will play a vital role to understand the final fate of the colony in November 1975. Morocco changed its strategy in the 60s to revitalize its bid for Spanish Sahara. The new proposition claimed for decolonization of Spanish Sahara while skirtting out the issue of an independent new state in the Spanish colony. That is to say, selfdetermination understood as reintegration to the adjacent country like Ifni, Macao or Gibraltar. Morocco articulated its offensive in several fronts. Francisco Villar called it internationalizing the issue to reach a bilateral agreement with Spain30.King Hassan rallied the backing of its neighbors and involved them in the decolonization claim against Madrid. In order to do so, Morocco reestablished relations with Algeria and recognized Mauritania in 1970.The antagonism from the past gave way to a common understanding. Both countries agreed to follow Moroccos position to demand the self-determination of Spanish Sahara in the summit of the UN Special Committee held in Addis Abeba in 196631.

26 27

Francisco Villar, Op. Cit.,page 113 &124. Diego Aguirre, Jos Ramn, Guerra en el Sahara, istmo, Madrid 1991,page 99. 28 Jos Ignacio Alguer Cuervo, El Sahara y Espaa: Claves de una descolonizacin pendiente, IDEA, 2006, page 180. 29 Jos Ignacio Alguer Cuervo, Op. Cit. Page 200. 30 Francisco Villar, op. Cit., page 112-113. 31 Thomas M. Franck, The stealing of the Sahara American Journal of International Law, Vol.70, No.4, Oct. 1976, page 702.

14

This stance rallied support from the third world, the Arab countries and the Communist bloc who asked Spain to meet the demands to decolonize Western Sahara. Regarding the bilateral negotiation with Spain the meeting of Barajas between General Franco and Hassan II on July 6 1963 brings about a freezing on the territorial claims for Ceuta, Melilla and the Canary Islands32.The Dtente did not include Spanish Sahara in the package. The Moroccan government had adopted another strategy for the Spanish colony. Another Moroccan diplomatic move seized the opportunity of Cold War dynamics. Hassan II agitated the ghost of socialism and heralded himself as the bastion against communism in North Africa. The domino effect in the region after the establishment of socialist regimes was a source of concern for the US. The secretary of State considered Morocco of vital interest for US security. King Hassans assassination attempts in 1971 and 1972 increased American aid to the shaky throne33. The rapprochement to France gave the Quay dOrsay the possibility to regain its role in the region and counterbalance the hostility of Algeria. The Moroccan effort to annex Spanish Sahara suffered a series of setbacks in the international arena. First, the decolonization committee of the UN clearly distinguished between Ifni that should be returned to Morocco and Spanish Sahara which should be subject to self-determination by its population in a referendum in GA Resolution 2229 in 196634.A few years later GA Resolution 298335 in 1972 directly puts forward the right for independence of Western Sahara. Nevertheless, the immobilism of the Spanish government wasted many opportunities to decolonize the Spanish Sahara despite the growing pressure of the neighboring countries, particularly Morocco. The Organization of African Unity (OAU) was strongly dedicated to the eradication of colonialism in Africa since its creation in 1963.Although a founding member, Morocco never found backing to its demands of sovereignty regarding Spanish Sahara36.It contravened the
32

Bernab Lpez Garca & Abdelkrim Belguendouz, Espaa-Magreb, siglo XXI: el porvenir de una vecindad, editorial Mapfre,1992, page 25. 33 Stephen Zunes & Jacob Mundy, Op. Cit., page 39. 34 Tony Hodges, The Western Sahara File, Op. Cit. , page 91; Resolution 2229, 20 December 1966, General Assembly Official Records, Twenty-first Session, Supplement 16, UN Document A/6316, p 72. 35 Tony Hodges, The Western Sahara file, Op. Cit., page 91; Resolution 2983, 14 December 1972, General Assembly Official Records, Twenty-seventh Session, Supplement 30. 36 Tony Hodges, Op. Cit., page 92.

15

Cairo Declaration (1964) and the Uti Possidetis Iuris principle that sanctified the intangibility of colonial borders. When Morocco joined the organization, the Alawi delegation made a reservation on that principle. Algeria, as John Ruescas37 points out saw in its support for the decolonization of Spanish Sahara not only a natural exercise of its political clout as a champion of freedom and self-determination born out of its bloody liberation war against France but also as a brake against Moroccan expansionism. Mauritania coveted the Spanish Sahara for the common cultural and ethnic background they shared with the Saharwi. Although Mauritania accepted the idea of an independent Sahara that would become a buffer against a Moroccan aggression, the Mauritanian President Daddah feared that Morocco may negotiate an agreement on its own with Spain, pulling him aside. The economic development of Western Sahara in the 60s aroused the interest of Morocco and Mauritania to occupy the Spanish colony, particularly because of its growing fish captures, the exploitation of the phosphates deposits by Fos-Bucra and the discovery of large underground aquifer layers that could enable the development of a green agriculture38. Although Morocco had economic incentives for the annexation of Spanish Sahara, the main factor that drove the insistence on claiming the territory had a domestic reason. John Ruescas underlines the monarchys need to buttress its legitimacy on nationalistic grounds39. A smoke screen to distract Moroccans from Political repression, the Ben Barka affair, strikes, economic inequalities and disaffection in high ranks of the army who tried to seize power in two failed coup dtat. To step down the military from politics, King Hassan lavishly financed the army. Next, he undertook a cunning move: the creation of a diversion to engage the army as well as the people in a national project for Morocco. This project was to be the annexation of Western Sahara. Its aim was to attire the backing of the opposition and all political

37 38

John Ruescas, Geopolitics and The Western Sahara Conundrum. Cambridge 2007, page 32 Hodges, Western Sahara: the roots of a Desert War, Op. Cit., page 126. 39 John Ruescas, Geopolitics and the Western Sahara conundrum. Cambridge 2007, page 36.

16

parties including the Moroccan Communist Party whose Secretary General Ali Yata had been an early adopter of the thesis of the Great Morocco.40 Pierre Renouvin included Nationalism among the Deep Forces that bring about change in the course of history. The birth of Saharwi nationalism credits much to the contagion of Pan- Arabism in the 50s and liberation movements in the 60s. Political figures like Nasser or Patrice Lumumba inspired revolts against colonial domination. Besides, we must take into account that the independence of Morocco, Mauritania and the war in Algeria marked a path to follow. The coming of age of the Saharwi people implied self-determination and a bid for statehood. The first Saharawi uprising against Spain took place during the war of Ifni. They created the Frente de Liberacin del Shara (FLS). Its members recruited in the Tarfaya Strip were sponsored by Morocco. The nationalist movement regained force in 1967.Demonstrations and riots against Spanish administration provoked the harsh intervention of the Spanish army to eradicate political unrest. Mohammed Sidi Ibrahim Bassari, a nationalist journalist who opposed Spanish colonial domination, created the Organizacin para la Liberacin del Pueblo Saharaui (OALS) that would channel the emerging Saharawi nationalism. Bassiri was arrested in a demonstration against Spain in Aain in 1970.The leader of the OALS disappeared under the custody of the Spanish police. However, nationalism had penetrated in Saharwi population who started to demand independence. The Moroccans encouraged the formation of the Frente Liberacin y de Unidad (FLU) in 1974. They advocated for unification with Morocco. It became a platform for subversive activities and terrorist attacks against Spanish platoons and military checkpoints in Western Sahara. Carlos Ruiz Miguel affirms that FLU was commanded by Moroccan officials and composed by elite corps of the Royal Moroccan Army,41 Along 1975 Morocco intensified its support to terrorist attacks against civilian objectives to bend Spains intention to grant independence to the Sahara42.

40 41

John Ruescas, Geopolitics and the Western Sahara conundrum. Cambridge 2007, page 37. Carlos Ruiz Miguel. Op. Cit., page 81. 42 Jos Ramn Diego Aguirre. Historia del Sahara Espaol. La verdad de una traicion, Keydeda Ediciones, Madrid, 1988, page 705 y ss.

17

Spain intervened to counterbalance the influence of nationalists. In 1967 The Spanish set up a consultive assembly called Yema with legislative initiative and composed by the leaders of the tribes. Obviously, the Spanish government controlled the Yema. A UN mission of inquiry which toured Spanish Sahara in May 1975 reported that it depended considerably for guidance on the Spanish authorities43. At the end of 1974, the Secretary General of Sahara Colonel Luis Rodrguez de Viguri, the top administrative authority of the colony, orchestrated the creation of Partido de la Union Nacional Saharawi (PUNS), a puppet moderate nationalist party loyal the guidelines of the Spanish government to manage a scenario of an independent Sahara under Spanish influence44. Both initiatives were fruitless to fight Saharawi nationalism. PUNS never achieved a strong political role. In 1973 the remains of OALS and other new political figures founded Frente Polisario: Frente de liberacin de Saquia el Hamra y Ro de Oro45. The leaders of the movement were young students living abroad: Luley, Ali Beiba, Brahim El Gali or Mohamed Abdelaziz who is the current Secretary General of the Frente Polisario46. They adopted guerrilla warfare, terrorism and kidnapping as the tools leading to liberation. The Polisario launched attacks against Spanish military and administrative objectives. The Polisario had a socialist Pan-Arabism ideology whose model was the Algerian Front de Libration National(FLN) that had defeated the French colonial rule in 1962.No wonder they found finance in Libya and particularly in Algeria, which also offered them sanctuary in Tinduf. President Boumediene split the common position that the Algerian diplomacy had kept with Rabat to favor openly the independence preached by Polisario. In two years, the Polisario gained a firm leading position against its political competitors in the colony. It became the political party which gathered the popular support and represented the majority of the Saharawi. In 1975 The Spanish authorities understood that they would have to negotiate with Polisario a political solution for the colony.

43

Report of the United Nations Visiting Mission to Spanish Sahara, 1975, in General Assemblv Official Records. Thirtieth Session, Supplement 23, Vol III, UN Document A/10023/Rev.1, p 44. 44 Tony Hodges, The Western Sahara File, page 93. 45 Manifesto of 10 May 1973. The text may be found in Sahara Libre (Polisario Front, Algiers), No.13, 20 May 1976 46 Tony Hodges, The Western Sahara, Op. Cit., page 85.

18

Meanwhile, the Spanish Military Staff in Madrid was reluctant to prolong the Spanish rule in Western Sahara. One of the top members of the Military Staff, General Gutirrez Mellado who was posted in Ceuta in 1975 warned the Prime Minister, Carlos Arias Navarro47of the dire consequences of an independent Sahara for the stability of Morocco. Similarly, the Spanish Military Staff advised the Ministry of the Prime Ministers Office, Antonio Carro, to cede Spanish Sahara to Morocco in April 1975. It justified the decision on the grounds of protecting the Spanish territories of Ceuta and Melilla from Moroccan claims48. Besides, Polisario was considered to be a puppet regime of Algiers and it may destabilize the Canary Islands supporting a separatist terrorist group called Movimiento para la Autodeterminacin e Independencia de Canarias (MPAIAC) which already enjoyed the protection of Algiers49. On May 23 1975 the Military Staff entrusted the Mando Unificado de Canarias (Military Command in the Canaries) with the planning of the evacuation from the colony should a transfer of sovereignty occur. On 15 October 1975 the Mando issues the Operacin Golondrina50 that developed the total evacuation of Spain from the colony. On October 17th, 1975 the Council of Ministers gave the go ahead to the plan with the backing of the High Military Staff that will implement it as of the very next day. Moreover, the Spanish Secret Intelligence Service also disliked the idea of statehood for Spanish Sahara. The Servicio Central de Documentacin (SECED) controlled by the Ministry of the Prime Ministers Office and the Third Section of the Military Staff (Military intelligence) feared a socialist influence in the region. Morocco represented the lesser evil to protect the Spanish interests in Northern Africa. The murder of the Prime Minister Carrero Blanco in December 1973 brought certain anarchy in the Palacio de Santa Cruz who had three foreign ministers in two years (1973-1975). Spains vacillations with the decolonization of Spanish Sahara increased in a frenzy scenario of turbulent times.

47

Javier Tusell, Tiempo de incertidumbre: Carlos Arias Navarro entre el Franquismo y la transicin, 2003, page 200-2003. 48 Los servicios de inteligencia espaoles, Antonio Daz Fernndez, page 176. Alianza Editorial, 2005. 49 Inocencio Arias, Los Presidentes y la Diplomacia, Plaza & Jans, 2012, page 85. 50 Jos Ignacio Alguer Cuervo. Op. Cit., page 187.

19

The Ministry of the Prime Ministers Office proposed a limited self-government for Western Sahara (Estatuto Politico del Shara) to appease both Saharwi nationalism and UN calls for decolonization in 197351. Ambassador Jaime de Pinis criticized this plan because the international community expected Spain to decolonize at once Spanish Sahara. Spain had pledged to commit itself to self-determination 14 years ago. It made no sense. Morocco feared that Spain would recognize in the autonomy statute the right for self-determination of the Saharwi population. The Moroccans protested at once to the Secretary General and the Spanish foreign ministry52. Morocco alleged that the aim of the autonomy was the creation of a puppet government controlled by Madrid. The hostility of Morocco and the UN persuaded the Spanish government to withdraw the project in August 197453. Spains situation in the committee of decolonization had suffered a reversal of fortune given recent events. Immobilism was not an option anymore. The fall of the dictatorship in Portugal became a source of concern. Francos regime imposed a sanitary cordon to curb a spill-over effect in Spain. The wave of decolonization lined up Spanish Sahara with other shameful outstanding colonial issues: Rhodesia, Namibia and apartheid South Africa. The new Spanish Foreign Minister, Pedro Cortina Mauri decided to drop ballast. Spanish Sahara had become a burden. Unexpectedly, on August 20th, 1974, Spain announced a self-determination referendum in the first semester of 1975 in Spanish Sahara. As part of the plan, Spain had recently conducted a census of the population counting 74000 voters. Procrastination had hitherto found a case for stalling a referendum that would be difficult to develop due to the nomadic habits and the harsh geography54. It seemed that the Sahrawis would eventually be free to choose their political status. Morocco demanded the suspension of the referendum and got rid of its obeisance to the norm of self-determination55.Morocco articulated a brilliant diplomatic move with the acquiescence of Mauritania: the intervention of the ICJ to determine in an advisory
51

Antonio Carro Martnez, La descolonizacin del Sahara, Revista de Politica Internacional n.144, March 1976, page 17. 52 Jaime de Pinis. La descolonizacin del Sahara: Un tema sin concluir, page 32. 53 Francisco Villar, Op. Cit., page 249-250. 54 Ruescas, Op. Cit., page 33. 55 The Stealing of Sahara. The American journal of International Law. October 1976, page 705.

20

opinion the status of Western Sahara. It meant postponing the referendum and the dispatch of a UN visiting mission in situ. Rabat negotiated the partition of Western Sahara with Mauritania56. The Spanish Foreign Ministry was reluctant to the intervention of the ICJ. The Spanish accepted to satisfy Arab countries. Madrid feared a cut in oil and gas supplies. Surprisingly, Algeria who mistrusted Rabats purpose also accepted it on the grounds of Third World solidarity. As Thomas Frank manifested, In Algerias view, the opinion could not have any practical effect, because it did not deal with the fundamental principle governing decolonization: self-determination57. The General Assembly approved Resolution 3292 on 13 December 1974 to submit the question to the ICJ58. The UN requested the Courts advisory opinion on the following questions: 1. Was Western Sahara a territory belonging to no one (Terra Nullius) at the time of the colonization by Spain? 2. What were the legal ties between this territory and the kingdom of Morocco and The Mauritanian entity? Meanwhile the Spanish authorities started secret talks with the Polisario to declare a truce and guarantee a peaceful transfer of powers. This cooperation between the, until that point, illegal Polisario and Spain sealed the fate of the PUNS whose political role had become completely insignificant. The Polisario would absorb it on 10 October 1975. The UN delegation visited Western Sahara in May 1975. It concluded in its report that Pro-Polisario massive demonstrations and rallies manifested a wide support for the organization as the main political representative of the Saharawi. The firm level of commitment of the people for self-determination convinced the UN diplomats that a significant part of the population wanted an independent state. These events and the insurgency against the Spanish control made clear that natives did not wish to remain part of Spain. As far as Moroccan and Mauritanian territorial claims
56 57

Janos Besenyo, Western Sahara, publikon, 2009, page 84. Thomas Franck. The Stealing of Sahara, The American Journal of International Law, 1976 , page709. 58 ICJ, Advisory Opinion of 16 October 1975. http://www.icj-cij.org/docket/index.php?sum=323&code=sa&p1=3&p2=4&case=61&k=69&p3=5

21

are concerned they were even more rejected than the Spanish dominion and unanimously refused59. The ICJ rendered its advisory opinion on 16 October 1975. First, the document determined that the Western Sahara constituted no Terra Nullius when the Spaniards arrived: According to the State practice of that period, territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius: in their case sovereignty was not generally considered as effected through occupation, but through agreements concluded with local rulers. The information furnished to the Court shows (a) that at the time of colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them; (b) that Spain did not proceed upon the basis that it was establishing its sovereignty over terrae nullius: thus in his Order of 26 December 1884 the King of Spain proclaimed that he was taking the Rio de Oro under his protection on the basis of agreements entered into with the chiefs of local tribes60. The brilliant work of The Spanish team composed by b diplomats and specialists in International Public Law like Jos Manuel Lacleta, Fernando Arias or Julio Gonzlez Campos argued the inconsistency of the Moroccan vindication. Therefore, the Court gave a negative answer to Question I. Then, in accordance with the terms of the request for advisory opinion the Court is to reply to Question II. The ICJ rejected Moroccan and Mauritanian claims of sovereignty on Western Sahara. Nevertheless, The Court assessed the existence of a tie of allegiance between some nomadic Saharan tribes to the king of Morocco. That is to say autoritas, insufficient to declare potestas, which reflects sovereignty. They found cultural and ethnic affinities with Mauritania, which also enjoyed grazing rights in given bordering lands. Finally, the opinion concluded by giving the go-ahead to the plebiscite that International law recognized to Sahrawis. The ICJ clearly dismissed the existence of any kind of territorial sovereignty of the kingdom of Morocco or Mauritania over Western Sahara.

59 60

Janos Besenyo, Op.Cit., page 82. ICJ, Advisory opinion, Op. Cit. http://www.icj-cij.org/docket/index.php?sum=323&code=sa&p1=3&p2=4&case=61&k=69&p3=5

22

The evidence disclosed before the court shows that neither Morocco nor Mauritania displayed any effective and exclusive state activity in Spanish Sahara61. Finally, the Court added: Thus the Court has not found legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in the decolonization of Spanish Sahara and, in particular, of the principle of selfdetermination through the free and genuine expression of the will of the peoples of the Territory62. Judge Federico de Castro63 maintained in his separate opinion that if the right for selfdetermination contested the validity of the legal titles to assert sovereignty on the territory by the colonial power, the historic titles of other interested states would also be derogated by the same principle64. The Moroccan government only acknowledged the part of the decision that stated the bond of allegiance between the Sultan and the Saharan tribes. In terms of Islamic Law this was an expression of sovereignty and in conclusion there was no need for a referendum to integrate Western Sahara into Morocco. The day after the ICJ published its advisory opinion, King Hassan announced the beginning of a peaceful march towards Western Sahara with the participation of 350,000 people65.The Green March intended to gain recognition of Moroccos right to national unity and territorial integrity66. France and the US gave diplomatic assistance to Rabat and organized the logistics. Saudi Arabia lavishly financed the Moroccan endeavor. Tarfaya, which was 30 km from the border, was declared its starting point. Franco had already suffered an acute heart stroke on 15 October 1975. He presided the Council of Ministers for the last time on 17 October 1975 monitored by a team of doctors who feared his imminent collapse.
61

ICJ, Advisory Opinion, Op. Cit. http://www.icj-cij.org/docket/index.php?sum=323&code=sa&p1=3&p2=4&case=61&k=69&p3=5 62 ICJ,Advisory Opinion, Op.Cit. http://www.icjcij.org/docket/index.php?sum=323&code=sa&p1=3&p2=4&case=61&k=69&p3=5 63 Separate opinion of Judge Federico De Castro.http://www.icj-cij.org/docket/files/61/6213.pdf 64 Carrillo Salcedo, Juan Antonio. libre determinacin de los pueblos e integridad territorial de los estados en el dictamen del TIJ sobre el Sahara Occidental. Revista Espaola de Derecho Internacional, 1976, page 48. 65 Thomas Franck, The Stealing of Sahara, Op. Cit., page 711. 66 Letter dated 18 October 1975 from the permanent representative of Morocco to the UN addressed to the president of the Security Council. UN doc S/11852.

23

One week later he would endure two heart attacks and bleeding ulcers falling in coma a few days later. The declining health of General Franco reflected the decay of the regime. In the time the old caudillo lay dying, the cabinet confronted to the dilemma of how to respond to Moroccos challenge67.The Prime Minister Arias Navarro, the Minister of the Prime Ministers Office Antonio Carro, the leader of the National Movement, Spains single party, Jos Solis and the upper military echelon headed by Carlos Fernndez Vallespin and Manuel Gutirrez Mellado preferred to hand over the territory to Morocco rather than facing a nightmare scenario: a socialist independent Sahara and a colonial war for a territory that Spain had to exit in any case. In contrary motion, the Foreign Ministry commanded by Minister Cortina Mauri was inclined to self-determination in accordance with international law. The army was sympathetic to Saharwi independence as well. Prime Minister Arias initiated a bilateral dialogue to arrange a mutually face saving agreement68.Solis visited King Hassan October 21st, 1975 to Marrakesh. Both agreed that the Green March would advance 10km into the Spanish territory. Meanwhile, the battle for self-determination in the UN was a fiasco. The UN Security Council watered down Pinis draft resolution and refused to condemn the Green March as an aggression in a series of UN resolutions: 377, 378 and 379.The US and France defended the Moroccan position actively. The Soviet Union represented by Jacob Malick kept a discreet neutrality. The UN abdicated its responsibility to decolonize. Hardly did the UN Secretary General Kurt Walheim manage to propose Ambassador Pinis a peacekeeping mission using the Spanish troops stationed in Western Sahara69 on 28 October 1975: Puesto que ya no resists la presin y queris marcharos del Shara, yo me har cargo del territorio y lo llevar a la autodeterminacin. Slo necesito que me dejis provisionalmente un contingente militar de 10.000 legionarios a los que colocaramos bajo bandera de la ONU70.

67 68

Ruescas , Op. Cit. page 39. Jacob Mundy. How the US and Morocco seized the Spanish Sahara. 2005 http://mondediplo.com/2006/01/12asahara 69 Francisco Villar, Op. Cit.Page 332; 339-340. 70 Toms Brbulo. La Historia Prohibida del Shara Espaol, ediciones Destino,2002.

24

Although Pinis supported this initiative in the Security Council, Morocco refused the Secretary Generals mediation plan. King Hassan was inclined to force Madrid to arrange a deal in the backstage without the UNs intervention that may call for a referendum on self-determination71. The defection of Hali Hena, Secretary General of PUNS in May 1975 beheaded the nationalist party. On 12 October 1975 PUNS joined efforts with Polisario consolidating National unanimity to gain independence from Spain. However another defection harmed the case for independence when the president of the Yema, Jatri Uld Said Uld Yumani, El Jatri quitted Sahara and paid homage to King Hassan II on 4 November 1975. These serious setbacks vanished the hopes of the Foreign Ministry to pursuit the fight for self-determination in the last Spanish colony. The UN stated that negotiations should be channeled through art 33 Charter. Prince Juan Carlos became acting Head of State on 30 October 1975 given Francos failing health. The young Prince took an unexpected decision on 2 November 1975 : a tour in Sahara to raise the morale in the troops and affirm his role as the Head of State. On 3 November 1975, Ahmed Osman, the Moroccan Prime Minister paid a short visit to Madrid where he closed further arrangements that had been managed in advance by the Foreign Minister Laraki in direct talks with the Spanish Ministry of the Prime Ministers office. On 6 November 1975, the Green March crossed the border and penetrated 10km deep into the Spanish Sahara72 just before the defensive line of the Spanish army. Two days later, Antonio Carro commissioned by a Spanish government which had already decided the abandonment of the colony went to Agadir where he directly negotiated with King Hassan. Prime Minister Arias Navarro convinced Prince Juan Carlos that the diplomatic weakness of Spain and the delicate economic and politic situation recommended an agreement. The Moroccan ruler called back the participants camping out in the desert. King Hassan and the Spanish Minister of the Prime Ministers Office struck the deal to close the handover of Western Sahara in the Madrid Accords that were signed on 14 November 1975.
http://traslapolitica.periodismohumano.com/tag/jaime-de-pinies/ 71 Pinis, Op. Cit., page 162. 72 Janos Besenyo. Op. Cit., page 90.

25

The treaty stipulated a joint administration until 28 February 1976. Afterwards, Spain would relinquish the colonial administration to Morocco and Mauritania. Given the confusing situation, the signatories involved the UN to fill the lack of legitimacy of the Madrid Accords. The General Assembly passed two contradictory resolutions that tried to balance self-determination against the transfer of administration of sovereignty (Resolution 3458A versus resolution 3458B). The new tripartite government took office in El-Aain according to the Madrid Accords. A few Spanish officials remained until the end of February73 participating in the interim administration. Polisario troops seized the opportunity provided by the transfer of power to occupy many garrisons engaging in combat against the Moroccan army. The members of the Yemaa as Tony Hodges74 affirms proved far less pliant than the signatories of the Madrid Accords had anticipated. At an extraordinary session held in Guelta Zemmour, near the Mauritanian border, on 28 November 1975, 67 of the Yemaa's 102 members proclaimed the assembly's dissolution and their unconditional support from the Frente Polisario, the sole and legitimate representative of the Saharan people. Morocco and Mauritania did, however, finally persuade 57 members of the Yema to attend a rump session of the assembly in El-Aain on 26 February 1976, and vote unanimously to give 'full approval' to Western Sahara's 'reintegration with Morocco and Mauritania'." Spain officially ended its 91-year period of colonial rule the same day75. While the Spanish retreated, the Moroccan army began an offensive to eliminate Polisarios insurgency against the occupation. The brutal Moroccan repression provoked a massive exodus of the population to Tindouf where the Sahrawis found shelter. The Royal Air Force retaliated dropping napalm, white phosphorous and cluster bombs on the refugees76.

73

Tony Hodges. The Western Sahara File. Third World Quarterly, Vol. 6, No. 1 (Jan., 1984), pp. 74-116 Taylor & Francis, Ltd., page 97 74 Tony Hodges. The Western Sahara File. Third World Quarterly, Vol. 6, No. 1 (Jan., 1984), pp. 74-116 Taylor & Francis, Ltd., page 97. 75 Tony Hodges, Op. Cit., page 97. 76 Toms Barbulo, la Historia Prohibida del Sahara Espaol, 2002, page 284.

26

Could Spain have acted otherwise? Given the circumstances, Spain opted for the only reasonable choice it had. Many have criticized Spains shameful betrayal and the signing of the Madrid accords. These are the reasons we have to assess to understand the position adopted by the Spanish government in November 1975: Francos regime was a vestige from fascist Europe defeated in World War II. A decadent dictatorship ruled by a dying man. King Hassan seized the opportunity given by the death throes of Franco and the subsequent power vacuum. Spain in the international scene was a pariah state; even more after the executions of members belonging to the terrorist groups of ETA and FRAP that took place in September 1975. Franco ignored pleas for clemency and a wave of protests condemned the repression of the dictatorship. The regime had no political alliances with the US or the European powers to persuade Morocco. Whereas Hassan II had brilliantly conceived the Green March to occupy Western Sahara, Spain was clueless. The Alawi monarch obtained the clear backing of the US and France. Through the mediation of the Moroccan Communist Party he cunningly guaranteed Moscows neutrality in the crisis. Tony Hodges account of the events defined the key points in these terms: the Green March was a political masterstroke. It precipitated events before the UN had time to consider the ICJ's conclusions. It brought enormous pressure to bear on Spain, and in Morocco it captured the imagination of the king's subjects and gave a new fillip to his regained prestige77. On 30 October1975, personal envoy Manuel Prado y Coln de Carvajal maintained a meeting on behalf of Prince Juan Carlos with President Giscard in which he affirmed that France would support Moroccos claim and offered his presence in the proclamation of King Juan Carlos as a token. A new Spain that sought international recognition as a soon-to-be democracy had to break the isolation. The great powers sent a clear message: facilitate Saharas decolonization and focus on democratization78.Another meeting of Prince Juan Carlos personal envoy with Kissinger in Washington had a similar result.

77 78

Tony Hodges, Op. cit., page 95. Joaqun Bardavio, El Enviado del Principe. 1983, page 155.

27

A colonial war was anathema for the government in Madrid. Led by the Portuguese example, many considered that it could trigger popular turmoil and unrest in the army. The Carnation Revolution of April 1974 had meant not only a socialist revolution in Portugal but also the independence of its former colonies Angola, Mozambique and Guinea, which also embraced communism. Another dangerous precedent was the French war in Algeria (1954-1962) that put an end to the IV Republic. Would Spain crumble in the same way? Besides, one cannot forget the fear towards the emergence of another warrior military caste. Franco, Yague, Sanjurjo, Varela or Molaall were reputed officers Africanistas who won their spurs in the African Colonial wars. They supported overwhelmingly the uprising against the government headed by the Frente Popular in July 1936. The aftermath of Francos demise awakened the ghost of the Spanish Civil War. The political instability of the Second Republic and the bloody memories of a conflict of three years played an important role in the Spanish political transition to overcome ideological differences and build together a common project for Spain. Another source of concern was the political stability of Morocco. An independent Sahara controlled by Algeria posed an immediate threat for the Moroccan monarchy. Moreover, we must mention that Hassan II suffered two coups dtat in 1971 and 1972. Instability in Morocco, the closest Western ally in the region, harmed Spains interests in Northern Africa. Finally, Polisario never drew the right conclusions from the political events. It flirted with Algeria and Libya, two sponsors of international terrorism and socialist regimes alienating itself from the US and the Western powers. The US has always supported self-determination and anti-colonialism as guidelines of its foreign policy but Polisario self-alignment with the socialist bloc inclined the balance to the Moroccan interests. Polisarios stance towards Spain was even clumsier. Whereas Spain was defending the right of self-determination of Western Sahara in The Hague before the ICJ and the General Assembly in New York, the Polisario condemned the executions of terrorists in Spain in September 1975. Moreover, they declare neither a ceasefire nor an end of hostilities until June1975. The Saharawi liberation movement never sought the possibility to build with Spain a roadmap to independence.
28

A cooperative approach with Spain would have strengthened their struggle for independence. Finally, Polisario had established strong links not only with illegal left wing parties like the Spanish Communist party (PCE) but also with terrorist organizations like Frente Revolucionario Antifascista y Patriota (F.R.A.P.). Both organizations published together a Manifesto in June 1975 against the Yankee-fascist dictatorship. Many feared that should Polisario take office, the Western Sahara would be a communist regime79. When Polisario realized in mid-October that Moroccos gambit was likely to pay off, they offered total cooperation to face the Moroccan threat. The Polisario representative Al Gali gathered with Pedro Cortina Mauri on 27th, October 1975. Polisario asked Spain to fulfill its international responsibility towards the Sahara, Spains honor at stake AlGali affirmed. Unfortunately, it was already too late. Polisario had overlooked the fact that the enemy was rather Morocco than Spain. We cannot forget that Polisario, Morocco, Algeria and Mauritania strongly disagreed on the matter except for one thing: oust Spain.

War in the Desert

The joint Moroccan Mauritanian invasion of Spanish Sahara began a war against the guerrilla forces of Polisario that would last for fifteen years. The Polisario Front organized a Saharwi government in exile in Algeria recognized by President Boumediene. Algeria also financed the refugee camps where half of the Saharwi population currently lives. Its significant involvement increased when Algiers provided with weapons to Polisarios forces. Algeria became the decisive advantage of Saharwi nationalists80. Polisario focused its strategy on defeating Mauritania since its army was ill equipped and unprepared for war. In 1978 Polisario launched a series of attacks against

79

Jose Ramn Diego Aguirre. Historia del Sahara Occidental: La verdad de una traicin, page 683,Ediciones kaydeda, 1988. 80 Zunes & Mundy. Op. Cit., page 9.

29

Mauritania. An expeditionary force led by El Ouli Mustapha Sayed put under siege the capital, Nouakchott .Mauritania could not afford a long conflict. Dissatisfaction grew due to economic woes. War had become unpopular, even between the high ranks of the army. In 1978 a coup dtat overthrew President Ould Daddah. In 1979 the new government headed by Colonel Heydallah81signed a peace agreement with Polisario. Nevertheless, Morocco annexed the third of territory ceded to Mauritania in the Madrid Accords to avoid a full recognition of statehood for Western Sahara in the Rio De Oro. In the 80s Morocco developed the construction of defensive berms equipped with radars, advanced surveillance systems and mined large areas as buffer zones to stop the raids of Polisario. The US and Saudi Arabia lavishly financed Morocco to pursuit the war effort82.The successive American governments have granted $ 3 billion in 40 years in economic and military aid for Morocco83. France intervened directly84in its African backyard. The French Military attacked positions hold by Polisario.85The French Security enrolled mercenaries to fight along the Moroccan troops and offered air support to Moroccan operations. All these circumstances reinforced the Moroccan domain of the Western Sahara, called southern provinces. Rabat controlled 80% of the territory, the rest, called the liberated land was in hands of Polisario.

United Nations Mediation

In 1988 the conflict was stuck. None of the adversaries may claim a victory. Morocco could not destroy Polisario without attacking its headquarters in Tindouf that would unleash Algerian offensive. Polisarios guerrilla warfare was useless against the berms. The stalemate opened way for negotiations brokered in first instance by the
81 82

Zunes & Mundy, Op. Cit. page 13. Zunes & Mundy, Op. Cit. page 18. 83 Zunes & Mundy, Op. Cit. page 71. 84 Zunes & Mundy, Op. Cit. page 12. 85 Zunes & Mundy, Op. Cit. page 12.

30

Organization of African Union and continued by the United Nations. The OAU repeatedly asked King Hassan to hold a referendum for self-determination in Western Sahara. The summit of Addis Abeba admitted SADR as a member state in 1982. Most African countries despised the annexation since it violated the sanctity of the inherited colonial borders. The Moroccans withdrew from the organization in protest of the recognition of the SADR86. The OAU put forward a settlement plan that included a ceasefire, withdrawal of armed forces, repatriation of refugees and a referendum to determine the sovereignty of the territory for the first time in 197987.However, Morocco just paid lip service to the proposal to delay the membership of the SADR in the organization. Secretary General Prez de Cullar recovered the base of the OAU mediation attempt and presented a deal endorsed by the UN to the parties in 1988. Thus, the Security Council approved the settlement plan in April 199188. A few months later, in September 1991, both armies declared a mutual ceasefire. Morocco intransigence changed for various reasons. Why did Morocco accepted to comply with the settlement plan presented by the UN? First, conflict remained in stalemate. The Costly war effort had heavily drained the Moroccan economic resources. The end of the cold war discredited the Moroccan effort to present the conflict as one of containment against a communist movement in Maghreb rather than a struggle for self determination. Polisario Front willingly accepted the terms of the agreement. Nevertheless the devil is in the details. In the case at hand, the referendum on selfdetermination and the electoral census. The referendum offered two choices: integration on Morocco against an independent Western Sahara. A win-lose game in which the winner takes it all. No wonder Moroccans alleged that the Spanish census of 1974, that was intended to be updated with the descendants and subsequently applied in the plebiscite, was flawed. The Moroccan government argued that it had failed to include 130000 voters. Polisario shot back deploring the fabrications of the Moroccan diplomacy to enlist native Moroccans in the census which would support integration to the Kingdom.
86 87

Zunes. Op. Cit ., page 178. Zunes. Op. Cit., page 175. 88 The Settlement Plan is contained in UN Security Council document S/22464, 19 April 1991.

31

In fact, Morocco had moved thousands of Moroccan settlers since the Green March to Western Sahara violating International Law. The Fourth Geneva Convention article 4989 condemns the transfer of civilian population in militarily invaded territories90. In 2012 the Moroccan settlers, most of them ethnic Saharwi from Southern Morocco 91, approximately 300000 people, represent 65% of the total population of Western Sahara. The indigenous Saharwi population is split in half between the refugee camps in Tindouf approaching165000092, and in occupied Western Sahara territory estimated in 200000 residents93. U.N. Security Council Resolution 690(1991) enacted the United Nations Mission for the Organization of a Referendum in the Western Sahara94 (MINURSO) to identify the voters called to participate in the self-determination referendum95. The UN intended that MINURSOs Identification Commission (IDC) would accomplish the identification of voters. Six months later, MINURSO would hold a selfdetermination referendum in January 1992.The next ten years confronted Morocco and Polisario in a diplomatic war and political maneuvers to determine the electorate that would decide the sovereign of the territory. The scheduled self-determination referendum never took place. Morocco and the Polisario rejected each others eligibility criteria96 deriving in procrastination of negotiations. In December 1996, Kofi Annan, the UN Secretary General appointed former US Secretary of State James Baker, as Personal Envoy of the UN Secretary-General to revitalize the peace talks. James Baker mediation efforts concluded the Houston Accords in September 1997.This agreement that rescued the peace process entailed a re-counting of the voters and acceptance of the much delayed

89

Convention (IV) relative to the Protection of Civilian Persons in Time of War.International Humanitarian Law - Treaties & Documents.http://www.icrc.org/ihl.nsf/full/380 90 Zunes. Introduction XXX. 91 Zunes. Op. Cit. Introduction, page XXI. 92 Zunes. Op. Cit., page 127. 93 All these figures were confirmed by Bucharaya Beyun, Delegado Saharaui para Espaa in a private interview held in the Polisario Legation in Madrid 8 June 2012. 94 United Nations, MINURSO - United Nations Mission for the Referendum in Western Sahara, Identification of Eligible Voters, Revision of the Spanish census ,http://www.minurso.unlb.org/IDC.html 95 Alexis Arieff, Western Sahara, Congressional Research Service, April 2012. 96 Andrew G. Lewis. Op Cit., page 15.

32

self-determination referendum by both parties. MINURSO closed a final voting list in January 2000, identifying a total of 86,386 voters97. Morocco rejected the census and submitted 130000 appeals98to reexamine would-be voters. Given the circumstances, The UN Secretary General advocated to drop the implementation of the Settlement Plan and asked James Baker to explore new proposals99 for an early, durable and agreed resolution of the dispute in February 2000100.Besides, the death of King Hassan II and the arrival of Mohamed VI chilled negotiations in 1999. The successor of Hassan II disregarded the possibility of staging a self-determination vote in a time of political incertitude. Baker moved towards a political solution to overcome the parties divergent interpretations on the settlement plan. Anna Theofilopoulou, a UN official who assisted Baker, defends that the settlement plan could not bridge the parties positions nor did it provided with an enforcement mechanism in case the result was dismissed by either Morocco or Polisario101. Subsequently, James Baker drafted a proposal that focused on granting territorial autonomy to Western Sahara under Moroccan sovereignty. The Baker Plan I: Framework agreement on the Status of Western Sahara102 was submitted to the UN Security Council by The UN Secretary general in June 2001. The initiative established a regional government in Western Sahara with autonomous powers on mining and fisheries but not on foreign affairs, defense and security matters which belonged to Morocco, taking into account its territorial integrity. There would be a legislative assembly elected by the voters identified in the MINURSO list that excluded Moroccan
97

Western Sahara: Out of The Impasse. Crisis Group Middle East/North Africa Report 66, 11 June 2007, page 2. 98 United Nations, MINURSO - United Nations Mission for the Referendum in Western Sahara, Identification of Eligible Voters, Revision of the Spanish census, second phase of identification( JuneDecember 1999).http://www.minurso.unlb.org/IDC.html 99 Anna Theofilopoulou, The United Nations and Western Sahara: A Never-ending Affair Special report 166, July 2006.United States Institute of Peace. Page 8. http://www.usip.org/publications/united-nations-and-western-sahara-never-ending-affair 100 U.N. Security Council, Report of the Secretary-General on the situation concerning Western Sahara (S/2001/613), 20 June2001, http://daccessods.un.org/access.nsf/Get?Open&DS=S/2001/613&Lang=E&Area=UNDOC 101 Anna Theofilopoulou, Op. Cit. page 9. 102 U.N. Security Council, Report of the Secretary-General on the situation concerning Western Sahara (S/2001/613), Annex I (Framework agreement on the Status of Western Sahara).

33

settlers. After 5 years, the status of Western Sahara would be decided in a referendum that undermined Polisarios aspirations. First, independence was not an option. Second, the voters list was extended to anyone aged 18 or more who had been resident in Western Sahara since the preceding year103 favoring the Moroccan residents. Anna Theofilopoulou recalls that Polisario supported by Algeria rejected the proposal since independence should be an option available for voters. Therefore, it would only engage in dialogue about the implementation of the settlement plan.104 The Security Council analyzed the different options available on Western Sahara to resolve the conflict105: 1) Implement the settlement plan without the consent of the parties; 2) Ask Baker to redefine the framework agreement solution 3) Explore with the parties the division of the territory; 4) Terminate MINURSO. The Security Council in July 2002106 asked Baker to pursue further negotiations and elaborate his proposals. James Baker put forward his second initiative, The Peace plan for self-determination of the people of Western Sahara, for the consideration of the Security Council in May 2003. The Baker Plan II established a 4 year interim period of home rule by an authority elected by the census of 86,000 Sahrawis identified by MINURSO. The autonomous regime was more developed than in the Baker plan I. Furthermore, Baker had established a real cession of power and institutional guarantees that hindered the Moroccan efforts to control the autonomy of the Saharwis. After 4 years the final status referendum would be completed with electors who had resided continuously in Western Sahara since 30 December 1999. At Spains insistence,

103

International Crisis Group, Western Sahara. Out of the Impasse. Middle East/North Africa Report N6611, June 2007, page 3. 104 Anna theofilopoulou, Op. Cit. page 9 105 Anna Theofilopoulou , Op. Cit.page 10. 106 UN SC Resolution 1429 July 2002.

34

voters would have the option to choose for independence as well as autonomy and full integration to Morocco107. Although the final census included thousands of Moroccan settlers and gave real chance of a positive outcome for Morocco, Polisario and Algeria endorsed the plan. In July 2003, The Security Council unanimously adopted resolution 1495 supporting the peace plan. Nevertheless, Rabat refused the proposal in April 2004. Meanwhile France, Moroccos closest ally blocked the Baker Plan II in the Security Council calling for a mutually acceptable solution108 in UN SC Resolution 1541 in April 2004.We must bear in mind the political events that affected to key members of the Security Council at that time. The new socialist Prime Minister of Spain Zapatero, eager to restore the deteriorated relations with Morocco, embraced the Moroccan thesis for autonomy109. Zapatero ill knowledge on the Western Sahara conflict made him believe that an agreement could be achieved in six months110. The Bush administration approach changed as the US war on terror had in Morocco a strategic ally. Andrew G Lewis111 points out that Morocco paid lip service either to the idea of granting a real autonomy to Western Sahara, or to self-determination. Morocco feared the East Timor analogy and its successful secession from Indonesia in 1999. Independence as an option in a future referendum challenged the territorial integrity of Morocco.

Recent Developments
Baker resigned in July 2004 after seven years of fruitless negotiations. Peter Van Walsum resumed the mediator role as the Secretary General Personal Envoy in 2006.

107

Private Interview with Inocencio Arias, former Spanish Ambassador to the UN, Feria del Libro de Madrid, 4 June 2012. 108 UN Security Council Resolution 541,29 April 2004. 109 El Polisario critica a Zapatero por alinearse con Marruecos,El Pas, 3 May 2004 http://elpais.com/diario/2004/05/03/espana/1083535208_850215.html 110 Chirac anuncia formalmente la creacin de un nuevo eje Berln-Pars-Madrid, El Pas,30 April 2004,http://elpais.com/diario/2004/04/30/espana/1083276003_850215.html 111 Andrew G Lewis. Andrew G. Lewis. A disappearing Right of Self Determination: The ongoing impasse in Western Sahara. The Fletcher School. Tufts University.2010. Page 17.

35

In April 2007 Morocco presented a counterproposal framed in the mandate of UN SC Resolution 1541 to advance towards a compromise solution: The Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region of April 2007112.The initiative had reformulated an autonomy proposal that Baker had rejected in 2003for lack of concretion. It aimed at enabling the Saharan population to manage its own affairs freely, democratically in full respect of the sovereignty of the kingdom of Morocco and its national integrity113. The new Moroccan diplomatic effort received the appraisal of the then-US Under Secretary of State Nicholas Burns who defined it as: a serious and credible plan. In a summit with Moroccan Foreign Minister Fassi Fihri in March 2011, US Secretary of State, Hillary Clinton stressed that the Moroccan autonomy plan constitutes a serious, realistic, and crediblea potential approach to satisfy the aspirations of the people in the Western Sahara to run their own affairs in peace and dignity114. Morocco emphasized that the autonomy proposal represented the roadmap to conduct further negotiations. Carlos Ruiz Miguel has analyzed the most important contributions of the Moroccan initiative115.The autonomy initiative recognizes two contradictory principles. On the one hand, the right for self-determination exercised in a referendum by the Saharwi people(point 8 and 27 of the document).On the other hand, selfdetermination must comply with the unity and territorial integrity of the Kingdom( point 2 and 14 of the document).

112

Kingdom of Morocco, Ministry of Foreign Affairs and Cooperation, Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region, http://www.maec.gov.ma/Initiative/Docs/Initiative%20ang.pdf 113 Anna Theofilopoulou , page 13;Letter dated 11 April 2007 from the Permanent Representative of Morocco to the United Nations addressed to the President of the Security Council. http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/MINURSO%20S2007206.pdf 114 State Department, Hillary Rodham Clinton, Remarks with Moroccan Foreign Minister Taieb Fassi Fihri, March 23, 2011. 115 Carlos Ruiz Miguel, La Propuesta Marroqu De Autonoma Para El Shara Occidental De 2007,Grupo de Estudios Estratgicos, 2007 http://www.gees.org/articulos/la_propuesta_marroqui_de_autonomia_de_2007_demasiados_agujeros _negros_4141

36

The sovereignty of Morocco over Western Sahara is incompatible with the option to vote for independence granted to the Saharwi people by International Law and UN GA resolution 1514(1960). As far as the distribution of powers between the central and regional governments are concerned, we must point out that the scheme is rather regressive compared to Baker Plan II. The document in point 6, 14 and 15 contains the powers that belong to the central government: natural resources, security and justice. Point 6 envisages that The State will keep its powers in the royal domains, especially with respect to defense, external relations and the constitutional and religious prerogatives of His Majesty the King. This clause is a reflect of the former art 19 of the Moroccan Constitution (art 41 and 42 of the amended Moroccan Constitution 2011) that legitimizes the absolute powers of the monarchy in the political system. The text does not provide any institutional guarantee for the autonomy status. Point 29 asserts: the Moroccan Constitution shall be amended and the autonomy Statute incorporated into it, in order to guarantee its sustainability and reflect its special place in the countrys national juridical architecture. It implies that the Moroccan people will be free to modify, suspend or terminate unilaterally the autonomy status whenever they intend to do so. Finally, the initiative have forgotten to fill many loopholes such as the identification and registering of the voters, establishment of mechanism to protect human rights and whether or not Southern Morocco would join the Western Sahara in a single region. Polisario shot back with a proposal that contained once again a self-determination referendum. Both parties engaged in a first round of direct talks to explore the options in Manhasset, New York, in June 2007.in April 2008, Peter Van Walsum, asserted: "there is no pressure on Morocco to abandon its claim of sovereignty over the territory and, therefore, [] an independent Western Sahara is not a realistic proposition116."Polisario criticized his biased stance and poor prospects for Saharwi independence. Therefore, Van Walsum stepped down from mediation.
116

Patrick Worsnip, "U.N. envoy calls Sahara independence unrealistic," Reuters AlertNet, April 21, 2008, http://www.alertnet.org/thenews/newsdesk/N21382839.htm

37

In January 2009, the Secretary-General appointed a new Personal Envoy, Christopher Ross, former US Ambassador to Algeria. Ambassador Ross has opened nine rounds of informal talks hitherto. The latest of which, was celebrated in March 2012117 in Armonk, New York. Neither side has prompted the need to escalate to a fifth round of formal negotiations. The stalemate continues in a climate of heightened tension since the brutal repression in November 2010 against the independence activists that organized demonstrations in the Gdam Izik protest camp, in El Aain118. The reported death of 12 Saharwis was internationally condemned119, although no sanctions were imposed on Morocco. The MINURSO annual renewal in April 2012120 reiterated the controversy to provide the protection for human rights in the occupied territories of Western Sahara through establishment of a UN mechanism to monitor and report on Human rights violations. France vetoed that possibility121 in the precedent years and in 2012 Paris supported again the Moroccan objection. Many other countries, including Spain122 opposed because the rest of the UN peacekeeping missions enjoy this kind of human rights protection mechanisms. Moroccans withdrew confidence from the UN Secretary Generals Personal Envoy, Mr. Christopher Ross in May 2012123. They consider he has failed to introduce the matter of home rule for Western Sahara in the bargaining table. In so doing, negotiations have focused on peripheral issues that are not relevant to conflict resolution. No progress has been made on core issues, particularly the recognition of self-determination.
117

Sahara Press Service,14 March 2012http://www.spsrasd.info/en/content/polisario-moroccoinformal-meeting-ends-without-significant-progress-next-rounds-june-and-ju 118 Human Rights Watch, World Report 2012: Morocco and Western Sahara http://www.hrw.org/world-report-2012/morocco-and-western-sahara 119 US Department of States Country Reports on Human Rights Practices for 2011 to the United States Congress. http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper 120 UN SC Resolution 2044 (2012), 24 April 2012 http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/2044(2012) 121 US Congress Research Centre. Morocco: Current Issues, Alexis Arieff, December 2011,Page18. 122 Espaa defiende que la MINURSO vigile los Derechos Humanos en el Shara,25April 2012. http://www.saharatoday.net/index.php?option=com_content&view=article&id=1431:espana-defiendeque-la-minurso-vigile-los-ddhh-en-el-sahara&catid=50:regional&Itemid=100 123 Marruecos pone fin a la actual mediacin de la ONU en el Shara Occidental.17 May 2012 http://internacional.elpais.com/internacional/2012/05/17/actualidad/1337287234_337751.html

38

Nevertheless, Polisario, The UN Secretary General, The US Secretary of State and the Spanish diplomacy have backed the continuity of Christopher Ross. Be that as it may, Morocco has committed itself to introduce home rule, a system called Regionalisation Avance that has been sanctioned by the new Moroccan Constitution passed in July 2011.Decentralisation and democratization constitute the pillars to refound the Moroccan state in a time in which the Arab Spring, in a domino effect, is tearing down the old autocratic order.

Chapter Two: Legal Issues

A Vanishing Right for Self-Determination? Self-Determination Revisited
An evident principle runs through the whole program I have outlined. It is the principle of justice to all peoples and nationalities, and their right to live on equal terms of liberty and safety with one another, whether they be strong or weak.
President Wilson's Fourteen Points, delivered in US Congress, January 8, 1918.

Andrew G. Lewis affirms in his work A disappearing Right of Self Determination that the decolonization of Western Sahara represents a leftover from a bygone era handled under the old rules of decolonization124. The author concludes: The conflict has dragged on through present time when the norm of self -determination has come to mean something less expansive that it once did. Self -determination no longer means independence125. Recent events reverse this statement. Mark Twains words The reports of my death are greatly exaggerated suit self -determination well. The right for self -determination of the Saharwis constitutes the core issue of the dispute on Western Sahara. Morocco has repeatedly rejected the Saharwis claim for independence. However, The uprising in Mali where the Tuareg National Liberation Movement (MNLA) declared the independence of Azawad in Northern Mali in April 2012 , the successful secession of
124

Andrew G. Lewis. A disappearing Right of Self Determination: The ongoing impasse in Western Sahara. The Fletcher School. Tufts University,2010, pages 90-91. 125 Andrew G. Lewis. Op. Cit., pages 90-91.

39

South Sudan in July 2011 or the ICJs advisory opinion on the secession of Kosovo in July 2010 sets again self -determination top in the international political agenda. It is my intention to analyze the right for self-determination, its evolution and its renovated strength to challenge the principle of intangibility of frontiers when foreign occupation and violation of human rights occurs. The right of self-determination has become a major principle in contemporary international public law. It refers to the right of a people to determine the political and legal status of the territory they live in, either by setting up an independent state or by joining a preexisting state126 . A wider definition would include the peoples right to freely pursue their economic, social and cultural development (paragraph 2, GA Resolution 1514, 1960). Self-determination emerged after WWI to articulate the principle of nationalities to redesign the European borders after the collapse of the central empires according to Wilsons fourteen points (point four). The former Princeton professor affirmed: Peoples are not to be handed from one sovereignty to anothermay now be dominated by their own consent127. Self-determination was not submitted to colonial dominions and the Covenant of the League of Nations created a new legal regime for the former German colonies and the territories submitted to the authority of the Ottomans: The mandates. After 1945 the situation of colonial territories changed drastically. First, the hegemons of the Cold War, the United States and the Soviet Union despised colonialism. Second, the United Nations took the lead to eradicate colonies, called non self-governing territories in the UN Charter (Chapters XI-XIII). The Parliament of Man passed a series of resolutions that consolidated the right of self- determination as a peremptory norm of International Law, Ius Cogens. Therefore, self- determination represents a binding principle which brings about International responsibility.

126

Peter Malanczuk, Akehursts, Modern Introduction to International Law, Routledge,7th edition,1997, page 326. 127 Zoubir and Volman, International Dimensions of the Western Sahara conflict, page 128.

40

The International law Commissions draft articles on State Responsibility completed in 2001 envisages maintenance by force of colonial domination as a serious breach of an international obligation128. Moreover, the ICJ described self -determination as an obligation erga omnes, enforceable toward all, in the East Timor case129 . The most important steps resulted in the unanimous adoption of GA Resolution 1514 The Declaration on the granting of independence to colonial countries and peoples by the UN general Assembly in 1960. Thomas Frank has analyzed the evolution of the concept. The Wilsonian concept of self-determination was applied to national minorities in Europe whereas the right of self -determination enshrined in the UN constitutes a collective right for the people in territories under colonial rule or foreign occupation. The final phase of self determination develops The Emerging Right for Democratic Governance130 which became applicable to every people in The Friendly Relations Declaration 2625(1970) and the two UN International Covenants signed in 1966. It stipulates that Self-determination is a driving principle of International Law which entitles to the individuals in all nations to determine their collective political status through democratic means131. Thomas Franck sums it up in this key statement on self determination: It also, at least for now, stopped being a principle of exclusion (Secession) and become one of inclusions; the right to participate. The right now entitles people in all States to free, fair and open participation in the democratic process of governance freely chosen by each State. When such participation is denied, when a people that, is geographically separate and is distinct ethnically and/or culturally, has been placed in a position or status of subordination perhaps a secession option may re-

128

Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001. http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf 129 East Timor case (Portugal Vs Australia),ICJ Judgment of 30 June 1995. http://www.icj-cij.org/docket/index.php?sum=430&code=pa&p1=3&p2=3&case=84&k=66&p3=5 130 Thomas Franck, The Emerging Right to Democratic Governance, The American Journal of International Law Vol. 86, No. 1 (Jan., 1992), pages 46-91. http://www.jstor.org/discover/10.2307/2203138?uid=3737952&uid=2129&uid=2&uid=70&uid=4&sid=2 1100880953701 131 A.A. Idowu, Revisiting the Right to Self-Determination in Modern International Law: Implications for African States, European Journal of Social Sciences Volume 6, Number 4 (2008).Page 50.

41

emerge as an international entitlement132.Therefore, self -determination is understood as democratic governance. UN Resolution 1541133(1960) recognizes several ways to achieve self-determination: the creation of a sovereign and independent state, free association or integration with another state and UN resolution 2625 (1970) added the choice of any other political status freely accepted by the people134( Integration, merger, federation, autonomy, confederation). Free choice in democratic terms requires its execution through a referendum or plebiscite which Spain committed itself to carry out in Western Sahara in 1975. Nevertheless, Resolution 1514 (1960) provides states with a territorial guarantee since it forbids secession in paragraph 6 any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. Uti Possidetis Iuris is a principle of international law that declares the obligation of newly independent sovereign states to respect the intangibility of frontiers inherited from colonization. The principle derives from the need to guarantee the territorial integrity of states. It originated in Latin America in the aftermath of Spains withdrawal in the XIX century. Decolonization extended Uti Possidetis Iuris to Africa and Asia. The principle was affirmed as International Customary Law by the International Court of Justice in the 1986 Burkina-Faso v Republic of Mali case which declared that Uti Possidetis Iuris was an international Customary law135 . The colonial boundaries highly overlooked ethnic lines, identities and cultural ties which led to violent post- colonial civil wars among differing ethnic groups in many countries like Sudan, Angola, Ethiopia or NigeriaTherefore the International Community sought to diminish the chance of border wars between the states which had

132 133

Thomas Franck, The Emerging right of Democratic government, Op. Cit. Page 59. UN GA Resolution 1541(1960), principle VI. http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/153/15/IMG/NR015315.pdf?OpenElement 134 Peter Malanczuk,Akehursts, Modern Introduction to International Law,Routledge,7th edition,1997, page327. 135 Frontier dispute Burkina Faso / Mali, International Court of Justice, 22 December 1986. http://www.icj-cij.org/docket/files/69/6447.pdf

42

recently gained independence by accepting this rule that sanctifies the intangibility of colonial borders. In July 1964 the Organization of African Unity passed Resolution AHG/Res.16 known as The Cairo Declaration. Member states adhered to the principle of stability of frontiers in the African continent. However, Morocco made a reservation to the resolution that contained the respect for colonial boundaries because it did not respect its authentic borders that expanded to Mauritania, western Algeria and Spanish Sahara136. The annexation of Spanish Sahara clearly violated not only the principle Uti Possidetis Iuris but also the right for self- determination. The organization prompted Morocco to comply with international legality and UN resolutions. Morocco eventually left the OAU on 12 November 1984 in response to the admission of the Sahrawi Arab Democratic Republic as a member state. Morocco has never defined its frontiers legally. Curiously, the current Moroccan constitution passed by referendum in July 2011 raises again the issue of its territorial irredentism in article 42: Le Roi, Chef de ltat, (...) Il est le Garant de lindpendance du Royaume et de son intgrit territoriale dans ses frontires authentiques. The Supreme Court of Canada's emphasized in its advisory opinion on the secession of Qubec in 1998137 that the unilateral right of a people to external self- determination is limited to certain circumstances according to international law: A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity. The Court held that the right to unilateral succession exclusively belongs to people under a colonial rule or foreign occupation. Unilateral Remedial succession exists when there is no democratic governance and violation of human rights. For instance, This argument rejects any claim for self- determination for Catalonia or The Basque
136

Saadia Touval, The Organization of African Unity and African Borders. International Organization Vol. 21, No. 1 (Winter, 1967), MIT Press, pp. 102-127. 137 Supreme Court of Canada, Reference re Secession of Quebec, [1998] 2 S.C.R. 217.August 20, 1998. http://scc.lexum.org/en/1998/1998scr2-217/1998scr2-217.html

43

Country to challenge the territorial integrity of Spain whose federal political system recognizes through the principle of autonomy, the participation of nationalities and regions ( art 2 Constitucin Espaola 1978) . The ICJs advisory opinion on Kosovo on 22 July 2010138 has eventually strengthened this approach. The Court in The Hague has advanced a de facto legality concerning remedial secession although it remains unregulated by international law. In so doing self- determination becomes a human rights protection mechanism. The ICJ declared that the unilateral declaration of independence of Kosovo in 2008 did not violate general international law. External self -determination is prohibited only in cases provided that there is a violation of Ius Cogens such as in the case of the Turkish Republic of Northern Cyprus or Rhodesia. The implications for Western Sahara are important because it ratifies the legality of the declaration of independence of the SADR on 27 February 1976 as an independent and sovereign state. Even more, it discredits the Moroccan proposal of autonomy for Western Sahara. Autonomy in autocracy has never worked139. The General Assembly regarded Western Sahara and East Timor too large a population and territory to be treated as colonial enclaves140, advocating for a referendum to determine their political status. Morocco has fruitlessly sought to assimilate the decolonization method applied to Ifni and Tarfaya to Western Sahara, Ceuta and Melilla. In view of the arguments displayed above Hans Corell, former Under-Secretary-General for Legal Affairs and United Nations Legal Counsel conclusions:
141

draws the following

138

ICJ advisory Opinion on Kosovos declaration of independence.22 july 2010. http://www.icj-cij.org/docket/files/141/15987.pdf 139 Anna Khakee, The Western Saharan Autonomy Proposal and Political Reform in Morocco, NOREF Reports, Oslo, Norway, June 2011. http://www.isn.ethz.ch/isn/Digital-Library/Publications/Detail/?ots591=cab359a3-9328-19cc-a1d28023e646b22c&lng=en&id=137479 140 Peter Malanczuck, Akehursts Modern introduction to international law.Routledge.1997.Page 331. 141 Hans Corell, Former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, The legality of exploring and exploiting natural resources in Western Sahara, Conference on Multilateralism and International Law, Pretoria, December 2008. http://www.havc.se/res/SelectedMaterial/20081205pretoriawesternsahara1.pdf

44

The legal framework for the right of the Sahrawi people to self-determination lies in the UN doctrine relating to decolonization and the continuing status of Western Sahara as a Non-Self-Governing Territory. The Sahrawi people have an inalienable right to self-determination and independence to be exercised in a free, fair and democratic manner in line with the UN resolutions in this regard. The exercise of this right constitutes therefore the only legal and political basis for achieving a just, viable and lasting solution to the conflict in Western Sahara. The international rules have apparently been weakened by the UN Security Council regarding the disputed territory of Western Sahara. Security Council Resolutions (1541, April 2004) imposing a just, lasting and mutually acceptable political solution for Morocco and Polisario142 reverse the international legality on the matter. Self -determination requires the free will of the people who aspire to independence not the consent of the occupying colonial power. Not only has the UN Security Council ignored that self-determination is a peremptory norm of International Law but it has also overlooked the UN own resolutions on the matter since 1960. Those who believe that the era of decolonization has largely passed must bear in mind the precedent of East Timor that in an identical situation of decolonization and foreign occupation by a third party who was not the administering power, eventually gained independence from Indonesia in 2002.

142

Anna Theofilopoulou, the UN and Western Sahara: A Never-ending Affair, United Nations Institute for Peace,July,2006, page 13. http://www.usip.org/publications/united-nations-and-western-sahara-never-ending-affair

45

The legality of the Madrid Accords

I said earlier that the law on the matter was clear and on the side of the Sahrawis, but it doesnt matter. Cynics always thought the law didnt matter: An international law for nations? Voltaire queried. Next theyll be talking about a code of conduct for highway robbers and gangsters.
Frank Ruddy, US Ambassador, former head of MINURSO143.

The Madrid accords144 signed on 14th November 1975 put an end to the Green March crisis. Spain accepted to transfer the Sahara and abandon the colony before 28 February 1976. Until that date, the territorys interim administration would be run by a triumvirate in which Gmez de Salazar as Governor General would be assisted in its functions by two deputy governors appointed by Morocco and Mauritania. The tripartite administration would respect Sahrawi populations will channeled through the Yemaa to culminate decolonization. The treaty contained secret clauses that gave satisfaction to Spains interests in the area. As far as its stake in Fos Bucraa is concerned, Spain would retain 35 % of the shares in the company, and the rest 65 % would be distributed between Morocco and Mauritania145.The Spanish government negotiated a guarantee for its traditional fishing rights in the area and managed to impose a moratorium of further Moroccan demands for the presidios, as well as an economic compensation for Spanish citizens146 forced to leave Spanish Sahara. None of these clauses were respected afterwards. In April 1976 Morocco and Mauritania carved up Spanish Sahara. Morocco annexed 2/3 of the territory and the rest, the former province of Rio Del Oro, was attributed to Mauritania147. The contents of the treaty stipulates: "On November 14, 1975, the delegations representing the Governments of Spain, Morocco and Mauritania, meeting in Madrid agreed in order on the following principles:
143

International conference on multilateralism and international law, with Western Sahara as a case study, December 2008.Pretoria, South Africa. http://www.arso.org/RuddyPretoria2008.htm 144 Declaracin de principios entre Espaa, Marruecos y Mauritania sobre el Sahara Occidental. United Nations Treaty Series. http://treaties.un.org/doc/publication/unts/volume%20988/volume-988-i-14450-other.pdf 145 Hodges, The Western Saharans, report 40,page 10.London,Minoritary Rights Group,1984. 146 Published by Revista Intervi 28 January 1978. 147 Stephen Zunes.Op. Cit., page 6.

46

1. Spain confirms its resolve, repeatedly stated in the United Nations, to decolonize the Territory of Western Sahara by terminating the responsibilities and powers which it possesses over that Territory as administering Power." 2. In conformity with the aforementioned determination and in accordance with the negotiations advocated by the United Nations with the affected parties, Spain will proceed forthwith to institute a temporary administration in the Territory, in which Morocco and Mauritania will participate in collaboration with the Yemaa and to which will be transferred all the responsibilities and powers referred to in the preceding paragraph. It is accordingly agreed that two Deputy Governors nominated by Morocco and Mauritania shall be appointed to assist the Governor-General of the Territory in the performance of his functions. The termination of the Spanish presence in the Territory will be completed by February 28, 1976 at the latest. " 3. The views of the Saharan population, expressed through the Yemaa, will be respected" 4. This instrument shall enter into force on the date of publication in the Boletin Oficial del Estado of the 'Sahara Decolonization Act' authorizing the Spanish Government to assume the commitments conditionally set forth in this instrument." The treaty was never made public. It was not published in Boletin Oficial del Estado (BOE)the Spanish Official diary that contains the newly promulgated laws. Morocco has grounded its claim for sovereignty over Western Sahara in the legality of the Madrid accords. However, Western Saharas legal status has not changed since the Moroccans occupied Spanish Sahara. It is still listed as a Non-Sovereign Territory whose decolonization must be completed. The United Nations recognizes that Morocco currently controls the territory de facto, but neither the General Assembly nor any other International Organization has ever recognized the effective dominion of the former Spanish colony constitutes a just title for Moroccan sovereignty. There was not even a Subrogatio Iuris in the condition of administering power and Spain continues its role as De Iure administrative power according to international Law.

47

In 2002 , the UN Under Secretary General for Legal Affairs Hans Corell was requested by the security council to give an advisory opinion148 on the legality in the context of international law, including relevant resolutions of the Security Council and the General Assembly of the United Nations, and agreements concerning Western Sahara of actions allegedly taken by the Moroccan authorities consisting in the offering and signing of contracts with foreign companies for the exploration of mineral resources in Western Sahara. He concluded in points 6 and 7 of his legal opinion that: "On 14 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, a status which Spain alone could not have unilaterally transferred. The transfer of administrative authority over the Territory to Morocco and Mauritania in 1975 did not affect the international status of Western Sahara as a NonSelf-Governing Territory" "On 26 February 1976, 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. Following the withdrawal of Mauritania from the Territory in 1979, upon the conclusion of the Mauritanian-Sahrawi agreement of 19 August 1979, Morocco has administered the Territory of Western Sahara alone. Morocco, however, is not listed as the administering Power of the Territory in the United Nations list of Non-Self-Governing Territories, and has, therefore, not transmitted information on the Territory in accordance with Article 73 e of the Charter of the United Nations"

148

UN Security Council, Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council. http://www.arso.org/Olaeng.pdf

48

On 26 February 1976, Spain informed the Secretary-General that as of that date: It had terminated its presence in the Territory of the Sahara and deemed it necessary to place on record that Spain considered itself thenceforth exempt from any responsibility of any international nature in connection with the administration of the Territory, in view of the cessation of its participation in the temporary administration established for the Territory149. Spain clearly stated that the process of decolonization in Western remained to be completed through the self determination of its population150: La descolonizacin del Sahara Occidental culminar cuando la opinin de la poblacin saharaui se haya expresado vlidamente. The Un resolution 3458 B that took note of the Madrid agreement on December 10th 1975 demanded the parties of the treaty to comply with the self-determination referendum that could not be substituted by a mere consultation to the Yemaa as an expression of the free will of the Saharwi people. Andrew G Lewis points out that Western Sahara remains in a legal limbo as the only listed power Non
151

Self

Governing

Territory

without

recognized

administering

because of the passivity of both Spain and Morocco. Carlos Ruiz Miguel 152 and

Julio Gonzlez Campos153 consider that the Madrid agreement contravened art 73 of the UN Charter. According to these authors the Spanish withdrawal forced either a self determination referendum or to put the territory under the administration of the trusteeship Council as envisaged in art 75 and 77.1c of the UN Charter. Therefore, we may invoke a cause for invalidity in the primacy of art 53 of the Vienna Convention on Treaties 1969 (violation of Ius Cogens154) and particularly art 103 of the Charter of the United Nations: In the event of a conflict between the obligations of the
149

United Nations, non self governing territories listed by General Assembly.Footnote 2 http://www.un.org/en/decolonization/nonselfgovterritories.shtml#foot2 150 Letter by ambassador Pinis addressed to Kurt Walheim, UN Secretary General, 26 February 1976, Jaime De Pinis, La descolonizacin del Shara: Un Tema Sin Concluir, Espasa Calpe, Madrid, 1990, page 219-221. 151 Andrew G. Lewis, Op. Cit. page 28. 152 Carlos Ruiz Miguel, Los Acuerdos de Madrid, inmorales, ilegales y polticamente suicidas.La ilustracin liberal,2006. http://www.ilustracionliberal.com/26/los-acuerdos-de-madrid-inmorales-ilegales-ypoliticamente-suicidas-carlos-ruiz-miguel.html 153 Julio Gonzlez Campos. Los Acuerdos Nulos de Madrid. El Pas 18 September 1977. 154 Francisco Villar, El proceso de autodeterminacin del Shara, Fernando Torres editor, 1982.Page346.

49

Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. Polisario and Algeria have repeatedly asked Spain to resume its responsibility as De Iure Administering Power to end the decolonization process155. On the contrary Spain as well as the UN have adopted a pragmatic approach. The Spanish government prefers to work on the current scenario in which Morocco has consolidated its position as de facto administrator as the best manner to pave the way for a mutual, agreed resolution accepted by Morocco and Polisario156.

The Nationality of the Saharwis

To be, or not to be: that is the question.
William Shakespeare, Hamlet.

Spanish Sahara represents a case of atypical decolonization analyzed at length by Carlos Ruiz Miguel157. Unlike the case of Morocco in 1956 in which the territory was transferred from the administering state to another one that existed previously; unlike the independence of Equatorial Guinea in which the transfer of the territory entailed the creation of a sovereign state ex novo, the Spanish presence in Western Sahara finished in an appalling abandonment on 26 February 1976. However the nefarious Madrid agreement did not address an outstanding issue: the nationality of the population of Western Sahara who enjoyed Spanish citizenship by origin, that is to say they were natural born Spaniards hitherto. There are two considerations on the matter. On the one hand, the acceptance of Morocco and Mauritanias annexation of the territory implied that the population would acquire the nationality of the new administering powers, that is to say Moroccan or Mauritanian nationality. On the other hand, a bulk of the Sahrawi population supported the proclamation of the SADR by the Polisario Front when the Spaniards left on 27 February 1976. Polisario exerted power on a part of the territory under its direct administration.
155 156

13 Congress of POLISARIO, Tifariti, December 2011. Interview to Jos Manuel Garcia Margallo, Foreign Minister of Spain. El Pais 21 January 2012. 157 Carlos Ruiz Miguel. Carlos Ruiz Miguel, Nacionalidad Espaola de ciudadanos saharauis. Revista General de Derecho nmero 663.1999.

th

50

The SADR unilateral declaration of independence is permitted by International Law According to the advisory opinion of the ICJ on Kosovo 22 July 2010. Nevertheless these political events did not offered a solution to a legal loophole. Neither The international community nor Spain recognized the annexation of the territory to Morocco and Mauritania. Therefore, the population did not acquire a new nationality from the occupying States who lacked a just title to possess the territory according to international Law. Besides, Spain refused also to recognize the SADR because Western Saharas legal status is determined in the Madrid accords. Subsequently, Spain did not recognize the existence neither of the SADR nor of a Saharwi nationality. Therefore, the abandonment of the Spanish Sahara provoked a legal paradox as the population remained Spanish. The Royal Decree 2258/1976 on 10 August, 1976 aimed at settling the legal conundrum. The government offered the Saharwi population the right to opt for the Spanish nationality in one year appearing before the judge in charge of the civil register in their place of residence in Spain. This norm dispossessed the Saharwis of their Spanish nationality by origin condemning them to be stateless people. Professor Carlos Ruiz Miguel158 and Eduardo Fungairio159, attorney in the Audiencia Nacional have criticized the validity of the regulation for the following motivations: The decree did not mention the possibility to opt for the nationality through the consular register rendering the proceedings an extremely difficult task given the occupation and war situation. The Ulpianus dictum Ultra posse nemo obigatum (one cannot be obliged to do the impossible)not only restricts the legal effect of the regulation but also annuls it . The purpose was to force the Saharwis to adopt another nationality or become stateless people. RD 2258/1976 opposed the contents of the civil code on nationality. the loss of nationality established in the decree contravened art 22 and art 23 of the civil code in force in 1976 that stipulated that the Spanish nationality could only be lose by the voluntary acquisition of another nationality, sanction or to keep the
158

Carlos Ruiz Miguel, Nacionalidad Espaola de ciudadanos saharauis. Revista General de Derecho nmero 663.1999. 159 Eduardo Fungairio Bringas, Los Saharauis y la nacionalidad espaola. El Mundo 17 Agosto 2011.

51

legal unity of the family. Such a contradiction could only be saved if the RD derogated the regulation of the civil code which is impossible because of the higher legal hierarchy of the civil code against a RD which is an inferior norm. The option for the Spanish nationality was based on the art 19 of the civil code special regime of the acquisition of nationality through naturalization which demanded that the petitioner for Spanish Nationality had to renounce previously to its former nationality(art 19.4 in the redaction in force in 1976).The Saharwi population evidently enjoyed Spanish citizenship as it makes proof the DNI identity card for the Saharwis or their participation in the national referendum in 1966 to pass the Ley Orgnica del Estado, a constitutional norm of the state. So, in order to acquire the Spanish nationality the Saharwis had to renounce to their former Spanish nationality? Moreover, the right to opt implies that the individual counts with several choices for nationality which is not the case of the issue at hand. Spain had rejected the annexation of Morocco and Mauritania but also had denied recognition to the declaration of independence of the SADR. The Saharwi population had a narrow set of choices: whether to remain Spaniards or became stateless people which the Universal Declaration of Human Rights bans in art 15 No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Another source of invalidity may arise from the Spanish Constitution promulgated in 1978. Article 11.2 CE No one of Spanish birth may be deprived of his nationality. The interpretation that declares the nullity of the decree considers that the Saharwis would enjoy the protection that the constitution grants to Spanish citizens by birth as the Constitutional Court doctrine maintains160. Next, Article 10.2 envisages that Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties.

160

STC 42/1986 de 11 abril, Fundamento Juridico 3.

52

The Supreme Court in a judgment on 28 October de 1998161 estimated the case of M. Badadi Mohamed Mulud a Saharwi that claimed for Spanish nationality alleging that he had never had any other nationality than Spanish by origin like all the Saharwis born before November 1975. The Court ruled that the plaintiff enjoyed Spanish Nationality on the grounds of Posesin de Estado provided in art 18 Civil Code. Posesin de Estado confers Spanish nationality by means of consolidation. The possession and continued use of Spanish Nationality for 10 years, in good faith and based on a title inscribed in the Civil Register shall enables the individual to remain Spanish National. Nevertheless, the Court avoided the controversy to declare the legality of the RD 2258/1976.

Given all these legal arguments, there seems to be one clear conclusion: Saharwis still retain Spanish citizenship.

The Exploitation of Western Saharas natural Resources

The territory of Western Sahara is abundant in mineral resources, fisheries and probably oil. Non Self Governing Territories resources are protected under the UN General Assembly resolution A/res/46/64 dated December 11, 1991 in which "the exploitation and plundering of colonial and non-self-governing territories by foreign economic interests, in violation of the relevant resolutions of the United Nations constitutes a serious threat to the integrity of those Territories." Jeffrey Smith162 completes it with the classic resolutions on decolonization .This author points out that The obligation to obtain the consent of the people living in the non self-governing territories to the development of their sovereign natural resources comes from the two General Assembly Resolutions at the heart of the UN self-determination

161

Posesin de Estado was introduced in the reform on nationality in 1990.Sentencia de la Sala Primera del Tribunal Supremo de 28 Octubre de1998 http://www.derechos.org/nizkor/espana/doc/sahasente.html 162 Jeffrey J. Smith, The plundering of the Sahara: Corporate criminal and civil liability for the taking of natural resources from Western Sahara,2011.Pending publication in the International Criminal Law Journal. http://arso.org/PlunderingoftheaharaSmith.pdf

53

process: Resolutions 1514 (XV) and 1541 (XV) of 14 December 1960. Resolution 1514 affirms that peoples may, for their own ends, freely dispose of their natural wealth and resources based on the principle of mutual benefit and international law in order to realize the right to freely pursue their economic, social and cultural development. UN resolutions have set the legal standards that declare the Saharwis sovereignty to the resources of occupied Western Sahara. In 1962 the General Assembly enshrined the permanent sovereignty of the people to natural resources in Resolution 1803.On 18 December 2008, the UN reckoned with these legal principles, applicable to Western Sahara in GA Resolution 63/102 in which the General Assembly called on Member States to adopt legislative, administrative or other measures in respect of their nationals and the bodies corporate under their jurisdiction that own and operate enterprises in the Non-Self-Governing Territories that are detrimental to the interests of the inhabitants of those Territories, in order to put an end to such enterprises163. This legal framework was completed with the aforementioned 2002 letter addressed to the President of the Security Council by Hans Corell, the Under Secretary general for legal Affairs. The opinion reflected on the legality of the contracts signed by the Moroccan authorities with foreign companies for the exploration of mineral resources and oil prospecting offshore of Western Sahara164. The signing parties included the Moroccan Office National de Recherches et dExploitations Petrolires (ONAREP) with Kerr McGee, an American company and the French oil giant, Total Fina Elf. Case law of the International Court of Justice did not provide any significant precedent in the matter. Neither did an examination of state practice. Unlike the aforementioned sources, Corell considered the question of exploitation of uranium and other natural resources in Namibia by South Africa and many international corporations relevant to the issue at hand. The Decree no 1 for the Protection of the Natural Resources of Namibia enacted in 1974165 by the United Nations Council for Namibia explicitly banned the appropriation of the countrys natural resources.

163

General Assembly Sixty-third session Agenda item 34 Economic and other activities which affect the interests of the peoples of the Non-Self-Governing Territories. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/476/91/PDF/N0847691.pdf?OpenElement 164 Hans Corell. Op. Cit. Point 1. 165 Namibia, UNTAG ,http://www.un.org/en/peacekeeping/missions/past/untagS.htm

54

Subsequently, The General Assembly166 severely condemned the illegal economic exploitation of Namibia, a nation under colonial rule. We must bear in mind that Namibia constituted a powerful analogy since it became a mandate under the authority of South Africa who reluctantly opposed self -determination167. The document asserted that further exploitation activities were to proceed not only regarding the benefit of the people of Western Sahara but also involving them in the economic development of the territory. Ambassador Corell admitted that Morocco has neither sovereign power on Western Sahara nor enjoys the status of administrative power. The fishing agreement approved by the EU on 22 may 2006 with Morocco raised the question of the illegal usufruct of Saharan resources in the public opinion. Sweden, Denmark or Norway criticized the agreement and NGOs mobilized to oppose the plundering of Western Sahara. Western Sahara Resource Watch (WSRW) has actively denounced this situation. It has articulated an international network of organizations and activists campaigning against those companies that are illegally exploring and exploiting the resources of Western Sahara. The organization claims that entering into deals with Moroccan companies or authorities in Western Sahara not only politically legitimizes the occupation of the territory but also adding funds to the Moroccan State coffers168.The organization denounced The EU for paying Morocco millions to fish in Saharwi waters. WSRW launched The Fish Elsewhere! campaign against the EU Moroccan fisheries agreement which breaches international law. According to the Agreement, fishing can take place in the waters under the sovereignty or jurisdiction of the Kingdom of Morocco169.The Alawi Kingdom extended its effects to Western Saharas territorial waters in some other similar agreements signed with Japan and Russia. Morocco annually earns $ 750 million from Saharan waters170. Erik Hagen has revealed Moroccos efforts to build up a flourishing fishing industry involving processing,

166 167

Resolutions 36/51 of 24 November 1981 and 39/42 of 5 December 1984. Akehursts Modern Introduction to International Law. Routledge , 1997, page 328-329. 168 Western Sahara Resource Watch http://www.wsrw.org/a114x515 169 EU- Moroccan Fisheries partnership agreement, 28 April 2006, http://www.vest-sahara.no/files/dated/2008-05-15/fisheries_partnership_agreement_eu-morocco.pdf 170 Toby Shelley, Behind The Baker Plan for Western Sahara, Middle East Report,2003. Page 18.

55

canning and freezing plants that have popped up along the coast171. In the last few years the government of Morocco has encouraged the development of fishmeal and fish oil industries for the production of animal foods and health products which are distributed worldwide172. In such a controversial issue, the European Union should have explicitly excluded Western Sahara from the fishing deal; indeed, the United States government when signing the US-Morocco Free Trade Agreement in 2004, limited its applicability to the internationally recognized Moroccan borders. Robert Zoellick, US trade representative stated that the US does not recognize Moroccan sovereignty over Western Sahara173. A conveyor belt transports phosphates from the mines in Bou Craa 100km to the El Aain harbor where ships export them worldwide. Phosphates are massively demanded to produce fertilizers in the agricultural sector. The industry has been providing Morocco with significant rents since 1976 in spite of continuous sabotage attacks carried out by Polisario guerrilla. Bou Craa currently produces annually around 3 million tons which amounts to 10% of Moroccos total production174. The state owned company Office Cherifien des Phosphates (OCP) is the worlds largest exporter of phosphates, possessing 70% of global reserves. OCP expects net profits to rise by USD$3 billion175 in 2012. Jeffrey J. Smith in his research work The Plundering of the Sahara 176 argues: The current market value of the two principal resources reveals the scale of taking. The European Union, primarily fishing in Saharan waters under a 2007 treaty, pays 36.1M/year to Morocco. A steady annual production of 3M tons of phosphate mineral
171

Erik Hagen, The role of natural resources in the Western Saharan conflict, and the interests involved. Western Sahara Conference Proceedings. Page 297. December 2008. https://my.unisa.ac.za/portal/tool/d26779f1-02ca-4b84-81c35 a3989ddcc02/contents/faculties/law/docs/15hagen.pdf 172 Erik Hagen, Op. Cit. Page 297. 173 Jacob Mundy, Mixing occupation and oil in Western Sahara. Corpwatch, 2005. http://www.corpwatch.org/article.php?id=12506 174 The phosphate exports, Western Sahara Resource Watch. http://www.wsrw.org/a117x521 175 Moroccos Phosphate Industry Will Benefit from The 'Arab Spring' in North Africa http://www.potashandphosphate.com/2012/03/moroccos-phosphate-industry-will-benefit-from-thearab-spring-in-north-africa.html 176 Jeffrey J. Smith, The plundering of the Sahara: Corporate criminal and civil liability for the taking of natural resources from Western Sahara,2011.Pending publication in the International Criminal Law Journal. http://arso.org/PlunderingoftheaharaSmith.pdf

56

rock from Bou Craa, carried by conveyor belt to the coast at Laayoune for loading aboard bulk freighters, generates revenues exceeding $600M. If such figures have been insufficient to prompt discussion about the taking of Saharawi resources, ongoing petroleum and mineral exploration in the territory and its Atlantic Ocean continental shelf may yet be the catalyst177. Fouad Abdelmoumni, a prestigious economist and Felipe Gonzlez 178, former prime minister of Spain, have made a splash by dissenting from the idea that Morocco obtains high profits from occupying Western Sahara. Quite the opposite in fact, The Western Sahara conflict has annually drained 3.5 % of Moroccos GDP for 35 years. The cost of this issue is quite simply Moroccos non-development.179 The economic burden is evident given Moroccos high military spending which mainly derives from the cost of the defensive berm and the deployment of 130,000 soldiers in the territory to content any revolt. Infrastructure spending has rocketed to $2.5 billion since 1975. Morocco has promoted the construction of two airports (Laayoune and Dakhla), three airfields (Guelmim, Tan Tan et Smara), four sea ports (Tan Tan, Tarfaya, El-Marsa-Layoune, Dakhla), 10,000 kilometers of road and a rate of connection to electricity and drinking water in the region of 82 %180. The government also subsidizes the Moroccan settlers and offers them social services. Civil servants posted in the southern provinces are granted a rise in their salary up to 75%181. The possible presence of Hydrocarbons, minerals and fishing do not explain the essence of the conflict. Stephen Zunes believes that many observers have overestimated the role of economics. In so doing, they have overlooked geopolitics. Otherwise, the

177

On current exploration see the website of Kosmos Energy Ltd. www.kosmosenergy.com 178 Sami Nair& Felipe Gonzlez, dilogo La reorganizacin geopoltica del mundo, CaixaForum, Madrid 28 September 2009.http://www.youtube.com/watch?v=3Rrop7fzUVY 179 Crisis Group interview, Fouad Abdelmoummi, member of the Moroccan Association for Human Rights (AMDH, Association Marocaine des Droits Humains), Rabat, 13 February 2007. 180 Fondation Andromede (bureau dtude dintelligence conomique marocain), which was made available to Crisis Group by its president, Moulay Abdelmalek Alaoui, also president of the Comit national marocain du Forum francophone des affaires. Crisis Group interview, Rabat, 8 February 2007. 181 Western Sahara: The Cost of the Conflict Crisis Group Middle East/North Africa Report N65, 11 June 2007.Page 12.

57

conflict would have been resolved long ago182. What is at stake? The bid for mastery between Morocco and Algeria in Northern Africa183. Moroccos case for sovereignty on Western Sahara suffered an important setback on 14 December 2011 when the European Parliament rejected a one-year extension of the bloc's fisheries agreement with Morocco on grounds that the pact contravened International Law and subsequently strengthened Rabat's grip of the disputed territory184.Paradoxically, The EU parliament approved an agricultural free trade agreement in February 2012 that does not exclude Western Sahara and prolongs the conflict185.

The New Moroccan Constitution of 2011

The Arab uprisings shocked the world in 2011. The political status quo in the Middle East has radically been affected. Revolutions are bloody, unpredictable and take time. How true Alexander Herzens words were: The death of the contemporary forms of social order ought to gladden rather than trouble the soul. Yet what is frightening is that what the departing world leaves behind it is not an heir but a pregnant widow. Between the death of the one and the birth of the other, much water will flow by, a long night of chaos and desolation will pass186. The Arab states represent the pregnant widow scenario in which the new order struggles to succeed the authoritarian rule that had emerged after independence from colonial powers. In many senses the uncertainty of the Arab uprising has derived in three antagonistic stances. Those who believe that the Arab spring will consolidate democracy and put an end to the backwardness of the Middle East. Some other authors
182 183

Stephen Zunes& Jacob Mundy. Op. Cit. page XII, introduction. Yahia H. Zoubir, The Western Sahara Conflict, Geopolitics as Impediment to Resolution of the Conflict, Concerned Africa Scholars Bulletin N85 - SPRING 2010.http://concernedafricascholars.org/bulletin/85/zoubir/ 184 EU lawmakers reject Morocco fisheries pact, 14 December 2011. http://www.reuters.com/article/2011/12/14/eu-morocco-fisheries-idUSL6E7NE3HE20111214 185 EU parliament approves Morocco agriculture trade deal, 17 February 2012. http://af.reuters.com/article/topNews/idAFJOE81G01620120217 186 Alexander Herzen, shortly after the failure of the 1848 Revolutions in Europe, quoted by Neal Ascherson, Memories of Amikejo, London Review of Books, 22 March 2012, page 17.

58

are confronted to the dilemma of Lampedusa in the Leopard and subsequently affirm that nothing will change. Things will stay as they are. Finally, the rest fear that the revolutions will lead to social turmoil and political anarchy. Arab fatalism at its finest. Political turmoil spread to Morocco where citizens demonstrated everywhere. The February 20 movement channeled discontentment calling for democratic reforms. The king announced a revision of the fundamental law that intended to strengthen the principle of separation of powers, with the relating checks and balances, and promote the democratization, revamping and rationalization of institutions187in March 2011. Professor Carlos Ruiz Miguel188 and Haizam Amirah189, analyst at Elcano think tank, believe that it delivered few improvements. The monarchy retains his exorbitant powers thwarting the rule of law. Certainly, the king appoints the prime minister and the ministers (Articles 47 and 48), is the commander in chief of the armed forces (Article 53), presides the high council on religious affairs as commander of the faithful, "Amir Al-Muminin, controls security forces and designates the judiciary compromising its independence (Articles 41, 54, 56), makes the law (dahir), and dissolves the parliament (Articles 47 and 51). Nevertheless, the new constitution inaugurated a multi -party system in which the Islamist leader Benkirane won the elections in November 2011. The Constitution enshrined a new model of state. The centralism inherited from the French colonial Jacobinism will give way to a model of regionalization avance (art 1.4 and Part IX Territorial Organization of the State). The introduction of autonomous powers seeks to accommodate the Saharwi and Amazigh identity within the Moroccan state. The government will enact organic laws that will develop the regionalization process as of 2013. The Moroccan government expects the Constitution approved in July 2011 to be the framework for its initiative to negotiate an autonomy statute for Western Sahara190.

187

Morocco Implements a New Constitutional Phase, Continuing to Move Ahead of Trends, Morocco News Agency, http://morocconewsagency.com/morocco-new-phase-11-24-2011.html 188 Carlos Ruiz Miguel, La Constitucin Marroqu de 2011. Dyckinson, 2012. 189 Personal interview with Haizam Amirah at IE Business School Madrid, 9 May 2012. 190 Letter 11 April 2007 to the President of the UN Security Council. S/2007/206.

59

Despite the greetings that the new governance model offers, we might have overlooked that one basic element is lacking in the institutional scheme: The legislative power of the regional and local administrations. Otherwise, the state deconcentrates its functions rather than decentralizes powers. The Constitution in its art 140.2 confers the exercise of statutory regulations, pouvoir rglamentaire, to the regions. It does not specify wider legislative powers nor does it envisage an institutional guarantee for autonomy. Quite the opposite in fact, since ordinary laws shall alter regions, prefectures, provinces and communes (art 135.4).

Conclusion
The Western Sahara conflict remains stuck in the international agenda despite the political efforts to breakthrough. All the mediation initiatives put forward on the bargaining table have failed. Although the Peace Plan drafted by James Baker in 2003 offered a just solution, Morocco with the French support in the Security Council watered it down. The Moroccan government refused a self-determination vote that might sever its sovereign rights over the disputed territory. UN has squandered more than a billion dollar in twenty years to resolve the conflict without obtaining any significant progress191. Zunes decomposes the essence of the dispute in two stages. The first one pits Moroccan irredentism against Western Sahara nationalism192. The second stage displays an international logic with Algerian support for Polisario, a Franco-American consensus to sustain the Alawi kingdom and Spains neutrality. Algeria has orchestrated through Polisario a low cost weapon that is severely damaging its neighbor. The MoroccanAlgerian rivalry has deteriorated the possibilities to reach an agreement. In fact, it has nurtured the extremist positions, calling for independence in the side of Polisario and disregarding calls for self-determination and imposing full integration in the case of Morocco. Besides, the cases of East Timor (2002), Kosovo (2008) and South Sudan (2011) in which International law sanctioned remedial succession, has enhanced Polisarios desire for independence.
191

Interview with Christopher Ross, Personal Envoy of the Secretary-General for Western Sahara, 25 January 2012.http://www.un.org/apps/news/newsmakers.asp?NewsID=48 192 Zunes & Mundy, Op. Cit. Introduction page XXXV.

60

The annexation heavily burdens the Moroccan economy. Bucharaya Beyun, the Polisario representative in Madrid told me: Mohammed VI may have the land but we have the time. Certainly, Rabat has annually buried 3.5% of its GDP in the Saharan sands. After 40 years its aim to incorporate Western Sahara to Morocco remains fruitless. Hassan II found in the occupation of Western Sahara a national project to reassert the legitimacy of the monarchy. Paradoxically, his greatest achievement has also revealed itself as his most disastrous failure. The consequences of a costly occupation, although domestic stability has not been compromised, have heightened regional rivalries and drastically curbed Moroccos economic development. Fernando Arias193, current Spains Ambassador to the UN, highlights that Western Sahara juridically constitutes a colonial issue. Obviously, the international community believes that the Sahrawi must be granted the chance to vote for independence according to the UN resolutions on the matter. Roland Dumas194, Former Foreign Affairs Minister of France, described that realpolitik has imposed a settlement in which non solution is the solution. That is to say, the Moroccan government expects that a policy of faits accomplis validates its sovereign power on the territory. Self - determination has evolved to express a democratic pattern in which people decide their own future beyond the traditional colonial framework. That is the reason why the US Secretary of State and the Spanish government found credible the proposal of a status of autonomy for Western Sahara within Morocco. King Hassan once said: everything is negotiable except the flag and the postage stamp. Abdelhamil El Ouali195 recasts self-determination as the right for democratic governance. Autonomy arrangements have integrated within the state territories with national minorities or indigenous people. Led by the successful example of Macedonia, I really believe this approach might break the deadlock as a basis for an acceptable and agreed resolution for both parties.
193

Fernando Arias Salgado, 11 Julio 2005,ABC. .http://www.abc.es/hemeroteca/historico11072005/abc/Home/el-sahara-occidental-dos-a%C3%B1osdespues_203728208656.html 194 lvaro Longoria, Hijos de las Nubes. Morenafilms,2012. 195 Abdelhamil El Ouali, Saharan Conflict: Towards Territorial Autonomy as a Right for Democratic Self Determination. London, Stacey International, 2008.

61

A win-win outcome instead of a winner takes it all scenario. Nevertheless, The Moroccan initiative for home rule is poorly devised. It must recognize legislative powers to the regional institutions and implement democratic reforms that would bring separation of powers and an independent human rights monitoring mechanism. Zunes defines the situation as a vicious catch 22196: A solution to the Western Sahara dispute is a precondition for Morocco stability. Yet a solution to the Western Sahara conflict first depends on Moroccos stability. The fate of the dispute is tied to the success of democratic reforms in Morocco. It would open a forum for political debate. Even to discuss the withdrawal from Western Sahara. The point is that the players to drive the reforms, the monarchy and its clientelist regime, the makhzen, have rather favored authoritarianism hitherto.

196

Zunes & Mundy, Op. Cit. , page 56.

62

Selected Bibliography
Stephen Zunes& Jacob Mundy, Western Sahara: War, Nationalism, and Conflict Irresolution. Syracuse University Press, 2010. Ismael Sayeh, El Primer Estado del Sahara Occidental. Ediciones lHarmattan, Paris.1998. Jos Ramn Diego Aguirre, Historia del Sahara Espaol: La Verdad De Una Traicin. Kaydeda, Madrid,1988. Jaime de Pinis, La Descolonizacin del Shara: Un Tema Sin

Concluir.Espasa.1990. Toby Shelley, What future for Africas Last Colony? Zed Books, London 2004. John Ruescas, Geopolitics and the Western Sahara Conundrum. Cambridge 2007. Carlos Ruiz Miguel, El Sahara Occidental y Espaa: Historia, Poltica y Derecho. Anlisis Crtico de la Poltica Exterior Espaola. Editorial Dykinson, Madrid, 1995. Haizam Amirah Fernndez, Cambios Estratgicos en la Negociacin del Plan de Paz para la Libre Determinacin del Pueblo del Shara Occidental. Mediterrneo y Mundo rabe - ARI N 105/2003.Real Instituto Elcano. gueda Mera Miyares, El Shara Occidental: Un conflicto olvidado? Instituto de derechos humanos de Catalua,2008. Juan Soroeta Liceras, El conflicto del Shara Occidental, reflejo de las contradicciones y carencias del Derecho Internacional. Servicio editorial de la UPV, Bilbao, 2001. Tony Hodges, The Roots of a Desert War. Lawrence Hill, 1984. Francisco Villar, El Proceso de Autodeterminacin del Shara. Editor Fernando Torres, 1982. Julio Caro Baroja, Estudios Saharianos, Ediciones Jcar, 1990.

63