THE DISPUTED TERRITORY OF WESTERN SAHARA

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

Pablo Sáez Herrera

Instituto de Empresa University.

Leopoldo Calvo-Sotelo, Advisor

13th July 2012

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Contents Page

Introduction 4

Chapter One: Historical and Political Background

Geographical Situation. Society in Western Sahara 4

Pre-Colonial Period 7

The Spanish Sahara 9

War in the Desert 29

United Nations´ Mediation 30

Recent developments 35

Chapter Two: Legal Issues

A Vanishing right for Self-Determination? Self-determination Revisited 39

The Legality of the Madrid Accords 46

The Nationality of the Sahrawis 50

The Exploitation of Western Sahara Natural Resources 53

The New Moroccan Constitution of 2011 58

Conclusion 60

Selected Bibliography 63

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Acronyms

AL Armée de Libération

AU African Union

BOE Boletín Oficial del Estado

CAM Confins Algéro-Marocains

CSCE Conference on Security and Cooperation in Europe

FAR Forces Armées Royales

FLN Front de Libération Nationale

FLU Front de Libération et de l’Unité

ICJ International Court of Justice

MINURSO Misión de las Naciones Unidas para la Organización del Referéndum en el Sáhara Occidental (UN Misión for the Referendum in Western Sahara)

MPAIAC Movimiento para la Autodeterminación y la Independencia del Archipiélago Canario (Movement for the Self-Determination and Independence of the Canary Archipelago)

NATO North Atlantic Treaty Organization

OAU Organisation of African Unity

POLISARIO Frente Popular para la Liberación de Saguia el-Hamra y Río de Oro

PUNS Partido de la Unión Nacional Saharaui

SADR Saharawi Arab Democratic Republic

UN United Nations

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Introduction

Western Sahara is Africa’s 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 Timor…

and 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.

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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 Chérifien 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 Morocco’s 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-Aaiún, 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.

2International Trade Centre. http://www.intracen.org/country/morocco/3Phiplip Szczesniak: The Mineral industries of Morocco and Western Sahara. US Geological survey Minerals yearbook 2001.

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Instead, they consider them to be “des morocains comme les autres”, another Moroccan

ethnic minority like the Amazigh and Rifeños.

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, Tahalat…Tribes 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.

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

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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.

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launched themselves into a quest to reach Asia sailing along the Atlantic coast of

Africa. Spain’s 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 Pequeña7 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 Dra´aRiver. 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”.

7John Ruescas, The Western Sahara conundrum. Cambridge University, 2007, page 21.8János Besenyö, Western Sahara, Publikon, Pecs 2009, page 48.9 Tony Hodges, The Roots of a desert war, Lawrance Hill & Company, 1983, page 31.10Stephen Zunes & Jacob Mundy, Western Sahara, OP. Cit., page 99.

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The Spanish Sahara

Spain regained strategic interest in Africa in 1860 when the forces of O´Donnell 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 Río de Oro and Saguia el-Hamra and Southern Spanish Morocco in the

Berlin Congress. Subsequently, Spain’s 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 Thompson. The Western Saharans: Background to conflict, 1980, page 171.12János Besenyö, Op. Cit., pag 49.13French-Spanish Convention November 27th 1912.

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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 Moroccan’s

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 M´hamid15.

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 Zunes & Mundy,Op. Cit. Introduction page 23.15Tony 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.

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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

Ejército de Liberación 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 España: Historia, Política y Derecho. Análisis crítico de la política exterior española, editorial Dykinson, Madrid, 1995.page 57-59.

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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 Algéro-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 20´s.

They had founded Villa Cisneros (Dakhla) in 1884 and La Güera was occupied a year

later.

El Aaiún 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 1950´s 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 Río de Oro to form the

province of Spanish Sahara (Decreto de Provincialización del Sahara, January 10th

195820). Ifni and Spanish Sahara integrated the Gobierno General del Africa Occidental

Española. 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 Tony Hodges, Western Sahara: the Roots of a Desert War, Op. Cit., page 98.19 Virginia Thompson & Richard Adloff, The Western Saharans: Background to Conflict, Taylor & Francis, 1980, page 219.20Carlos Ruiz Miguel, El Sahara Occidental y España: historia, política y derecho, análisis crítico de la política exterior española, Dykinson, 1995, page 45-46.; Francisco Villar Op. Cit. Pages 75-77.

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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 Orgánica 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 Nómadas and the Yemaá 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. Madrid´s 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, Piniés

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. “L´esprit 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

21January 4th 1969, treaty of Fez .Spain returns Ifni which had been ceded in appliance of art 8 Tetuán treaties 1860.22 General Assembly Resolution 2027(XX), 1965.23Francisco Villar, El proceso de Autodeterminación del Sáhara, Fernando Torres Editor, 1982, page 126.24 Ruiz Miguel. Op. Cit., page79.25 José Ramón Diego Aguirre, Historia del Sahara Español. La verdad de una traición, Kaydeda Ediciones, Madrid, 1988.Page 590.

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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 Muñoz 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. José 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 Minister´s 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 60´s 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, self-

determination 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 Morocco’s position to

demand the self-determination of Spanish Sahara in the summit of the UN Special

Committee held in Addis Abeba in 196631.

26Francisco Villar, Op. Cit.,page 113 &124.27Diego Aguirre, José Ramón, Guerra en el Sahara, istmo, Madrid 1991,page 99.28José Ignacio Algueró Cuervo, El Sahara y España: Claves de una descolonización pendiente, IDEA, 2006, page 180.29 José Ignacio Algueró Cuervo, Op. Cit. Page 200.30 Francisco Villar, op. Cit., page 112-113.31Thomas M. Franck, ‘The stealing of the Sahara’ American Journal of International Law, Vol.70, No.4, Oct. 1976, page 702.

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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 Détente 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 Hassan´s assassination attempts in 1971

and 1972 increased American aid to the shaky throne33. The rapprochement to France

gave the Quay d´Orsay 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

Cairo Declaration (1964) and the Uti Possidetis Iuris principle that sanctified the 32Bernabé López García & Abdelkrim Belguendouz, España-Magreb, siglo XXI: el porvenir de una vecindad, editorial Mapfre,1992, page 25.33 Stephen Zunes & Jacob Mundy, Op. Cit., page 39.34Tony 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 30.36Tony Hodges, Op. Cit., page 92.

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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 60´s 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-Bucraá 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 monarchy’s 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 d´état.

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

parties including the Moroccan Communist Party whose Secretary General Ali Yata had

been an early adopter of the thesis of the Great Morocco.40

37John Ruescas, Geopolitics and The Western Sahara Conundrum. Cambridge 2007, page 3238Hodges, Western Sahara: the roots of a Desert War, Op. Cit., page 126. 39John Ruescas, Geopolitics and the Western Sahara conundrum. Cambridge 2007, page 36.40John Ruescas, Geopolitics and the Western Sahara conundrum. Cambridge 2007, page 37.

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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 50´s and liberation movements in the 60´s. 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 Liberación del Sáhara (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 Organización para la Liberación del Pueblo Saharaui (OALS)

that would channel the emerging Saharawi nationalism. Bassiri was arrested in a

demonstration against Spain in Aaiún 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 Liberación 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 Spain’s intention to grant independence to the Sahara42.

Spain intervened to counterbalance the influence of nationalists. In 1967 The Spanish

set up a consultive assembly called Yemáa with legislative initiative and composed by

the leaders of the tribes. Obviously, the Spanish government controlled the Yemaá. A

41 Carlos Ruiz Miguel. Op. Cit., page 81.42José Ramón Diego Aguirre. Historia del Sahara Español. La verdad de una traicion, Keydeda Ediciones, Madrid, 1988, page 705 y ss.

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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 Rodríguez 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 liberación de Saquia el Hamra y Río 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

Libération 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.

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 Gutiérrez

Mellado who was posted in Ceuta in 1975 warned the Prime Minister, Carlos Arias

43 Report of the United Nations Visiting Mission to Spanish Sahara, 1975, in General AssemblvOfficial 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 197646 Tony Hodges, The Western Sahara, Op. Cit., page 85.

18

Navarro47of the dire consequences of an independent Sahara for the stability of

Morocco. Similarly, the Spanish Military Staff advised the Ministry of the Prime

Minister´s 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 Autodeterminación 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 “Operación 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 Documentación (SECED) controlled by the

Ministry of the Prime Minister´s 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). Spain’s vacillations with the decolonization of Spanish Sahara increased

in a frenzy scenario of turbulent times.

47Javier Tusell, Tiempo de incertidumbre: Carlos Arias Navarro entre el Franquismo y la transición, 2003, page 200-2003.48 Los servicios de inteligencia españoles, Antonio Díaz Fernández, page 176. Alianza Editorial, 2005.49 Inocencio Arias, Los Presidentes y la Diplomacia, Plaza & Janés, 2012, page 85.50José Ignacio Algueró Cuervo. Op. Cit., page 187.

19

The Ministry of the Prime Minister’s Office proposed a limited self-government for

Western Sahara (Estatuto Politico del Sáhara) to appease both Saharwi nationalism and

UN calls for decolonization in 197351.

Ambassador Jaime de Piniés 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.

Spain’s 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. Franco’s 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

51Antonio Carro Martínez, La descolonización del Sahara, Revista de Politica Internacional n.144, March 1976, page 17.52 Jaime de Piniés. La descolonización del Sahara: Un tema sin concluir, page 32.53Francisco Villar, Op. Cit., page 249-250.54Ruescas, Op. Cit., page 33.55The 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 Rabat’s purpose also accepted it on the grounds of

Third World solidarity. As Thomas Frank manifested, “In Algeria’s 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 Court’s 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 Janos Besenyo, Western Sahara, publikon, 2009, page 84.57 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 José Manuel Lacleta, Fernando Arias or Julio González 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 Janos Besenyo, Op.Cit., page 82.60ICJ, 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 self-

determination 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 self-

determination 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 Morocco’s 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.

61ICJ, 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=562ICJ,Advisory Opinion, Op.Cit. http://www.icjcij.org/docket/index.php?sum=323&code=sa&p1=3&p2=4&case=61&k=69&p3=563Separate opinion of Judge Federico De Castro.http://www.icj-cij.org/docket/files/61/6213.pdf64Carrillo Salcedo, Juan Antonio. libre determinación de los pueblos e integridad territorial de los estados en el dictamen del TIJ sobre el Sahara Occidental. Revista Española de Derecho Internacional, 1976, page 48.65Thomas Franck, The Stealing of Sahara, Op. Cit., page 711.66Letter 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 Morocco’s challenge67.The Prime Minister Arias Navarro, the

Minister of the Prime Minister´s Office Antonio Carro, the leader of the National

Movement, Spain’s single party, José Solis and the upper military echelon headed by

Carlos Fernández Vallespin and Manuel Gutiérrez 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 Piniés´ 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

Piniés a peacekeeping mission using the Spanish troops stationed in Western Sahara69

on 28 October 1975:

“Puesto que ya no resistís la presión y queréis marcharos del Sáhara, yo me haré cargo

del territorio y lo llevaré a la autodeterminación. Sólo necesito que me dejéis

provisionalmente un contingente militar de 10.000 legionarios a los que colocaríamos

bajo bandera de la ONU70.”

67Ruescas , Op. Cit. page 39.68 Jacob Mundy. How the US and Morocco seized the Spanish Sahara. 2005 http://mondediplo.com/2006/01/12asahara69Francisco Villar, Op. Cit.Page 332; 339-340.70 Tomás Bárbulo. La Historia Prohibida del Sáhara Español, ediciones Destino,2002.http://traslapolitica.periodismohumano.com/tag/jaime-de-pinies/

24

Although Piniés supported this initiative in the Security Council, Morocco refused the

Secretary General’s mediation plan. King Hassan was inclined to force Madrid to

arrange a deal in the backstage without the UN´s 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 Yemaá, 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 Franco’s 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

Minister’s 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

Minister’s Office struck the deal to close the handover of Western Sahara in the Madrid

Accords that were signed on 14 November 1975.

71Piniés, 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-Aaiún 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

Yemaá to attend a rump session of the assembly in El-Aaiún 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

Polisario´s 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 9774 Tony Hodges. The Western Sahara File. Third World Quarterly, Vol. 6, No. 1 (Jan., 1984), pp. 74-116Taylor & Francis, Ltd., page 97.75 Tony Hodges, Op. Cit., page 97.76Tomás Barbulo, la Historia Prohibida del Sahara Español, 2002, page 284.

26

Could Spain have acted otherwise? Given the circumstances, Spain opted for the only

reasonable choice it had. Many have criticized Spain’s 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:

Franco’s 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 Moscow’s 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 Colón de Carvajal maintained a

meeting on behalf of Prince Juan Carlos with President Giscard in which he affirmed

that France would support Morocco’s 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 Sahara’s decolonization and focus on

democratization78.Another meeting of Prince Juan Carlos´ personal envoy with

Kissinger in Washington had a similar result.

77Tony Hodges, Op. cit., page 95.78Joaquín 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 Mola…all 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 Franco’s 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 d´état in 1971 and 1972.

Instability in Morocco, the closest Western ally in the region, harmed Spain’s 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. Polisario´s 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 Morocco’s 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, “Spain’s 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 Polisario´s 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

Mauritania. An expeditionary force led by El Ouli Mustapha Sayed put under siege the

79Jose Ramón Diego Aguirre. Historia del Sahara Occidental: La verdad de una traición, page 683,Ediciones kaydeda, 1988.80Zunes & Mundy. Op. Cit., page 9.

29

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 d´état 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 80´s 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. Polisario´s guerrilla warfare was useless against the berms.

The stalemate opened way for negotiations brokered in first instance by the

Organization of African Union and continued by the United Nations. The OAU

81Zunes & Mundy, Op. Cit. page 13.82Zunes & Mundy, Op. Cit. page 18.83Zunes & Mundy, Op. Cit. page 71.84Zunes & Mundy, Op. Cit. page 12.85Zunes & Mundy, Op. Cit. page 12.

30

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 Pérez de Cuéllar 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 self-

determination 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.

86Zunes. Op. Cit ., page 178.87Zunes. 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 Morocco91,

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 MINURSO´s Identification Commission (IDC) would

accomplish the identification of voters. Six months later, MINURSO would hold a self-

determination 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 other’s 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

89Convention (IV) relative to the Protection of Civilian Persons in Time of War.International Humanitarian Law - Treaties & Documents.http://www.icrc.org/ihl.nsf/full/38090Zunes. Introduction XXX.91Zunes. Op. Cit. Introduction, page XXI.92Zunes. Op. Cit., page 127.93 All these figures were confirmed by Bucharaya Beyun, Delegado Saharaui para España 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.html95Alexis Arieff, Western Sahara, Congressional Research Service, April 2012.96Andrew 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 Sahara”102 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

97Western 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( June-December 1999).http://www.minurso.unlb.org/IDC.html99Anna 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-affair100 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=UNDOC101Anna 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 Polisario´s aspirations. First, independence was not an option. Second,

the voter´s 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 Spain’s insistence,

voters would have the option to choose for independence as well as autonomy and full

integration to Morocco107.

103International Crisis Group, Western Sahara. Out of the Impasse. Middle East/North Africa Report N°6611, June 2007, page 3.104Anna theofilopoulou, Op. Cit. page 9105Anna Theofilopoulou , Op. Cit.page 10.106 UN SC Resolution 1429 July 2002.107 Private Interview with Inocencio Arias, former Spanish Ambassador to the UN, Feria del Libro de Madrid, 4 June 2012.

34

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, Morocco’s 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.

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

108UN Security Council Resolution 541,29 April 2004.109 El Polisario critica a Zapatero por alinearse con Marruecos,El País, 3 May 2004 http://elpais.com/diario/2004/05/03/espana/1083535208_850215.html110 Chirac anuncia formalmente la creación de un nuevo eje Berlín-París-Madrid, El País,30 April 2004,http://elpais.com/diario/2004/04/30/espana/1083276003_850215.html111Andrew G Lewis. Andrew G. Lewis. A disappearing Right of Self Determination: The ongoing impasse in Western Sahara. The Fletcher School. Tufts University.2010. Page 17.112 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

35

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 credible—a 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, self-

determination must comply with the unity and territorial integrity of the Kingdom( point

2 and 14 of the document).

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.

113Anna 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-8CD3-CF6E4FF96FF9%7D/MINURSO%20S2007206.pdf114 State Department, Hillary Rodham Clinton, “Remarks with Moroccan Foreign Minister Taieb Fassi Fihri,” March 23, 2011.115 Carlos Ruiz Miguel, La Propuesta Marroquí De Autonomía Para El Sáhara Occidental De 2007,Grupo de Estudios Estratégicos, 2007http://www.gees.org/articulos/la_propuesta_marroqui_de_autonomia_de_2007_demasiados_agujeros_negros_4141

36

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 country’s 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.

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

116 Patrick Worsnip, "U.N. envoy calls Sahara independence unrealistic," Reuters AlertNet, April 21, 2008,http://www.alertnet.org/thenews/newsdesk/N21382839.htm117 Sahara Press Service,14 March 2012http://www.spsrasd.info/en/content/polisario-morocco-informal-meeting-ends-without-significant-progress-next-rounds-june-and-ju

37

Gdam Izik protest camp, in El Aaiún118. 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 General’s 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.

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 Avancée” 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.

118 Human Rights Watch, World Report 2012: Morocco and Western Saharahttp://www.hrw.org/world-report-2012/morocco-and-western-sahara119US Department of State’s Country Reports on Human Rights Practices for 2011 to the United States Congress. http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper120 UN SC Resolution 2044 (2012), 24 April 2012http://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 España defiende que la MINURSO vigile los Derechos Humanos en el Sáhara,25April 2012.http://www.saharatoday.net/index.php?option=com_content&view=article&id=1431:espana-defiende-que-la-minurso-vigile-los-ddhh-en-el-sahara&catid=50:regional&Itemid=100123 Marruecos pone fin a la actual mediación de la ONU en el Sáhara Occidental.17 May 2012 http://internacional.elpais.com/internacional/2012/05/17/actualidad/1337287234_337751.html

38

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 Twain’s 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

South Sudan in July 2011 or the ICJ´s 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

124Andrew 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

joining a preexisting state126 . A wider definition would include the people´s 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

Wilson’s fourteen points (point four). The former Princeton professor affirmed:

“Peoples are not to be handed from one sovereignty to another…may 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.

The International law Commission’s 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

126 Peter Malanczuk, Akehurst´s, Modern Introduction to International Law, Routledge,7th edition,1997, page 326.127Zoubir and Volman, International Dimensions of the Western Sahara conflict, page 128.128 Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001.http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf129East 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

40

-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-

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

130Thomas 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=21100880953701131 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 50.132 Thomas Franck, The Emerging right of Democratic government, Op. Cit. Page 59.133UN GA Resolution 1541(1960), principle VI.http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/153/15/IMG/NR015315.pdf?OpenElement134Peter Malanczuk,Akehurst´s, Modern Introduction to International Law,Routledge,7th edition,1997, page327.

41

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 Spain’s 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 Nigeria…Therefore the International

Community sought to diminish the chance of border wars between the states which had

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:

135 Frontier dispute Burkina Faso / Mali, International Court of Justice, 22 December 1986.http://www.icj-cij.org/docket/files/69/6447.pdf136Saadia Touval, The Organization of African Unity and African Borders. International Organization Vol. 21, No. 1 (Winter, 1967), MIT Press, pp. 102-127.

42

“Le Roi, Chef de l’État, (...) Il est le Garant de l’indépendance du Royaume et de son

intégrité territoriale dans ses frontières authentiques.”

The Supreme Court of Canada's emphasized in its advisory opinion on the secession of

Québec 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

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 Constitución Española 1978) .

The ICJ´s 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

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.html138 ICJ advisory Opinion on Kosovo´s declaration of independence.22 july 2010.http://www.icj-cij.org/docket/files/141/15987.pdf

43

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 141 draws the following

conclusions:

“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

139Anna 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-a1d2-8023e646b22c&lng=en&id=137479140 Peter Malanczuck, Akehurst´s 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.pdf142Anna 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

44

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.

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 doesn’t matter. Cynics always thought the law didn’t matter: “An international law

for nations?” Voltaire queried. “Next they’ll 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 territory’s interim administration would be run by a

triumvirate in which Gómez de Salazar as Governor General would be assisted in its

functions by two deputy governors appointed by Morocco and Mauritania. The tripartite

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.htm144Declaración de principios entre España, 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

45

administration would respect Sahrawi population’s will channeled through the Yemaa

to culminate decolonization. The treaty contained secret clauses that gave satisfaction to

Spain’s 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:

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"

145Hodges, The Western Saharans, report 40,page 10.London,Minoritary Rights Group,1984.146Published by Revista Interviú 28 January 1978.147Stephen Zunes.Op. Cit., page 6.

46

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 Sahara’s 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.

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

148UN 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

47

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 Non-

Self-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"

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 descolonización del

Sahara Occidental culminará cuando la opinión de la población saharaui se haya

expresado válidamente.”

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.

149United Nations, non self governing territories listed by General Assembly.Footnote 2http://www.un.org/en/decolonization/nonselfgovterritories.shtml#foot2150Letter by ambassador Piniés addressed to Kurt Walheim, UN Secretary General, 26 February 1976, Jaime De Piniés, La descolonización del Sáhara: Un Tema Sin Concluir, Espasa Calpe, Madrid, 1990, page 219-221.

48

Andrew G Lewis points out that Western Sahara remains in a legal limbo as the only

listed Non Self Governing Territory without a recognized administering

power151because of the passivity of both Spain and Morocco. Carlos Ruiz Miguel152 and

Julio González 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

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

151Andrew G. Lewis, Op. Cit. page 28.152Carlos Ruiz Miguel, Los Acuerdos de Madrid, inmorales, ilegales y políticamente suicidas.La ilustración liberal,2006. http://www.ilustracionliberal.com/26/los-acuerdos-de-madrid-inmorales-ilegales-y-politicamente-suicidas-carlos-ruiz-miguel.html153Julio González Campos. Los Acuerdos Nulos de Madrid. El País 18 September 1977.154 Francisco Villar, El proceso de autodeterminación del Sáhara, Fernando Torres editor, 1982.Page346.155 13th Congress of POLISARIO, Tifariti, December 2011.156Interview to José Manuel Garcia Margallo, Foreign Minister of Spain. El Pais 21 January 2012.157Carlos Ruiz Miguel. Carlos Ruiz Miguel, Nacionalidad Española de ciudadanos saharauis. Revista General de Derecho número 663.1999.

49

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 Mauritania’s 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.

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

Sahara’s 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.

50

Professor Carlos Ruiz Miguel158 and Eduardo Fungairiño159, 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

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 Orgánica 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

158 Carlos Ruiz Miguel, Nacionalidad Española de ciudadanos saharauis. Revista General de Derecho número 663.1999.159Eduardo Fungairiño Bringas, Los Saharauis y la nacionalidad española. El Mundo 17 Agosto 2011.

51

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.”

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 “Posesión de Estado” provided in

art 18 Civil Code. Posesión 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 Sahara´s 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

160STC 42/1986 de 11 abril, Fundamento Juridico 3.161 Posesión de Estado was introduced in the reform on nationality in 1990.Sentencia de la Sala Primera del Tribunal Supremo de 28 Octubre de1998http://www.derechos.org/nizkor/espana/doc/sahasente.html

52

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

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

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

163 General Assembly Sixty-third session Agenda item 34 Economic and other activities which affectthe 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?OpenElement164Hans Corell. Op. Cit. Point 1.

53

Moroccan Office National de Recherches et d’Exploitations Petrolières (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 country’s natural resources.

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 NGO´s 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

165 Namibia, UNTAG ,http://www.un.org/en/peacekeeping/missions/past/untagS.htm166Resolutions 36/51 of 24 November 1981 and 39/42 of 5 December 1984.167Akehurst´s Modern Introduction to International Law. Routledge , 1997, page 328-329. 168Western Sahara Resource Watch http://www.wsrw.org/a114x515

54

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 Sahara’s territorial

waters in some other similar agreements signed with Japan and Russia. Morocco

annually earns $ 750 million from Saharan waters170. Erik Hagen has revealed Morocco

´s efforts “to build up a flourishing fishing industry involving processing, 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

Aaiún 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 Morocco’s total production174. The state owned

company Office Cherifien des Phosphates (OCP) is the world’s largest exporter of

169EU- Moroccan Fisheries partnership agreement, 28 April 2006,http://www.vest-sahara.no/files/dated/2008-05-15/fisheries_partnership_agreement_eu-morocco.pdf170 Toby Shelley, Behind The Baker Plan for Western Sahara, Middle East Report,2003. Page 18.171 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 297.173Jacob Mundy, “Mixing occupation and oil in Western Sahara”. Corpwatch, 2005. http://www.corpwatch.org/article.php?id=12506174The phosphate exports, Western Sahara Resource Watch. http://www.wsrw.org/a117x521

55

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 Sahara176 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

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 González178, 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 Morocco’s GDP for 35 years. “The cost

of this issue is quite simply Morocco’s non-development.179”

The economic burden is evident given Morocco’s 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-Laâyoune, Dakhla), 10,000

kilometers of road and a rate of connection to electricity and drinking water in the

175Morocco’s Phosphate Industry Will Benefit from The 'Arab Spring' in North Africa http://www.potashandphosphate.com/2012/03/moroccos-phosphate-industry-will-benefit-from-the-arab-spring-in-north-africa.html176 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.pdf177On current exploration see the website of Kosmos Energy Ltd. www.kosmosenergy.com178Sami Nair& Felipe González, “diálogo La reorganización geopolítica del mundo”, CaixaForum, Madrid 28 September 2009.http://www.youtube.com/watch?v=3Rrop7fzUVY179Crisis Group interview, Fouad Abdelmoummi, member of the Moroccan Association for Human Rights (AMDH, Association Marocaine des Droits Humains), Rabat, 13 February 2007.

56

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

conflict would have been resolved long ago182. What is at stake? The bid for mastery

between Morocco and Algeria in Northern Africa183.

Morocco´s 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 Herzen´s 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.

180Fondation Andromede (bureau d’étude d’intelligence économique marocain), which was made available to Crisis Group by its president, Moulay Abdelmalek Alaoui, also president of the Comité national marocain du Forum francophone des affaires. Crisis Group interview, Rabat, 8 February 2007.181Western Sahara: The Cost of the Conflict Crisis Group Middle East/North Africa Report N°65, 11 June 2007.Page 12. 182Stephen Zunes& Jacob Mundy. Op. Cit. page XII, introduction.183Yahia H. Zoubir, The Western Sahara Conflict, Geopolitics as Impediment to Resolution of the Conflict, Concerned Africa Scholars Bulletin N°85 - SPRING 2010.http://concernedafricascholars.org/bulletin/85/zoubir/184EU lawmakers reject Morocco fisheries pact, 14 December 2011. http://www.reuters.com/article/2011/12/14/eu-morocco-fisheries-idUSL6E7NE3HE20111214185EU parliament approves Morocco agriculture trade deal, 17 February 2012.http://af.reuters.com/article/topNews/idAFJOE81G01620120217

57

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

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 institutions187”in 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

186Alexander 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 17.187Morocco Implements a New Constitutional Phase, Continuing to Move Ahead of Trends, Morocco News Agency, http://morocconewsagency.com/morocco-new-phase-11-24-2011.html188 Carlos Ruiz Miguel, La Constitución Marroquí de 2011. Dyckinson, 2012.189Personal interview with Haizam Amirah at IE Business School Madrid, 9 May 2012.

58

Jacobinism will give way to a model of “regionalization avancée” (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.

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 réglamentaire”, 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

190Letter 11 April 2007 to the President of the UN Security Council. S/2007/206.191Interview with Christopher Ross, Personal Envoy of the Secretary-General for Western Sahara, 25 January 2012.http://www.un.org/apps/news/newsmakers.asp?NewsID=48192Zunes & Mundy, Op. Cit. Introduction page XXXV.

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international logic with Algerian support for Polisario, a Franco-American consensus to

sustain the Alawi kingdom and Spain’s neutrality. Algeria has orchestrated through

Polisario a low cost weapon that is severely damaging its neighbor. The Moroccan-

Algerian 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

Polisario´s desire for independence.

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 Morocco’s

economic development.

Fernando Arias193, current Spain’s 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

193Fernando Arias Salgado, 11 Julio 2005,ABC..http://www.abc.es/hemeroteca/historico11072005/abc/Home/el-sahara-occidental-dos-a%C3%B1os-despues_203728208656.html194 Álvaro Longoria, Hijos de las Nubes. Morenafilms,2012.

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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.

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 Morocco’s 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.

195Abdelhamil El Ouali, Saharan Conflict: Towards Territorial Autonomy as a Right for Democratic Self Determination. London, Stacey International, 2008.196Zunes & Mundy, Op. Cit. , page 56.

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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 l´Harmattan,

Paris.1998.

José Ramón Diego Aguirre, Historia del Sahara Español: La Verdad De Una

Traición. Kaydeda, Madrid,1988.

Jaime de Piniés, La Descolonización del Sáhara: Un Tema Sin

Concluir.Espasa.1990.

Toby Shelley, What future for Africa’s Last Colony? Zed Books, London 2004.

John Ruescas, Geopolitics and the Western Sahara Conundrum. Cambridge

2007.

Carlos Ruiz Miguel, El Sahara Occidental y España: Historia, Política y

Derecho. Análisis Crítico de la Política Exterior Española. Editorial Dykinson,

Madrid, 1995.

Haizam Amirah Fernández, Cambios Estratégicos en la Negociación del Plan de

Paz para la Libre Determinación del Pueblo del Sáhara Occidental. Mediterráneo

y Mundo Árabe - ARI Nº 105/2003.Real Instituto Elcano.

Águeda Mera Miyares, El Sáhara Occidental: ¿Un conflicto olvidado? Instituto

de derechos humanos de Cataluña,2008.

Juan Soroeta Liceras, El conflicto del Sáhara Occidental, reflejo de las

contradicciones y carencias del Derecho Internacional. Servicio editorial de la

UPV, Bilbao, 2001.

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Tony Hodges, The Roots of a Desert War. Lawrence Hill, 1984.

Francisco Villar, El Proceso de Autodeterminación del Sáhara. Editor Fernando

Torres, 1982.

Julio Caro Baroja, Estudios Saharianos, Ediciones Júcar, 1990.

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