.
The UN Mission for the Referendum in Western Sahara, MINURSO, was established thirty years ago this year, in 1991. The mission’s original objective was to establish the framework for Sahrawi self-determination while also keeping an eye on a ceasefire between Morocco and Polisario, the Western Sahara national liberation movement. The UN vowed when it established the mission that it would put an end to the long-running strife in what is still Africa’s only un-decolonized region. Despite this, the UN has failed to address the issue according to international law and the Saharawi population continues to wait, three decades later, for the promised referendum whilst suffering severe human rights violations. Currently, two-thirds of the territory of Western Sahara is illegally occupied by Morocco, where it has promoted the settlement of Moroccan population Sahara and continuously exploits its natural resources, while nearly 200,000 Saharans live in refugee camps in southwestern Algeria and a quasi-state in exile, the SADR is trying to be recognized by the international community (Barreñada, 2021).
Background
Marked by the Spanish colonial administration, the struggle for the independence of the Sahrawi people began in 1975 when Spain transferred the administration of Western Sahara to Morocco and Mauritania. From this moment the confrontation began with The Popular Front, known as the Polisario Front. Created in 1973, the Polisario Front represented the independence movement and the armed political wing. As a result of this struggle for independence, the Sahrawi State was established with the creation of the Sahrawi Arab Democratic Republic (SADR) in 1976, the legitimate representative of the Sahrawi people (Rodríguez, 2017).
In 1979, Mauritania abandoned the military conflict and since then the dispute remained between Morocco and the Polisario Front until the ceasefire was declared in 1991 (Settlement Plan). This UN-monitored ceasefire represented a transitional period that would allow for the return of Sahrawi refugees and a referendum, to be held within two years, with a choice between independent statehood for Western Sahara or formal integration into Morocco under Moroccan sovereignty (Lovatt and Mundy, 2021). To implement that plan, the UN Security Council, on April 1991, created the MINURSO, the United Nations Mission for the Referendum in Western Sahara. However, while the UN Secretary-General was able to announce a cease-fire in August 1991, the other aspects of the plan were put on hold and delayed due to a lack of consensus between the parties about the referendum’s organization, mainly, the technical criterion for identifying and registering Sahrawi voters was one of the most difficult concerns and the pretext for the Moroccan Government to postpone the referendum.
Between 1991 and autumn 2020, the situation in Western Sahara remained largely unchanged, despite the efforts of various United Nations special envoys to achieve a permanent solution. Three personal envoys, Peter van Walsum (2005-2008), Christopher Ross (2009-2017), and Horst Köhler (2018-2019), all failed to bring the parties together in a fruitful debate and the lack of a UN personal envoy, two years after the most recent appointee retired in May 2019, has exacerbated diplomatic inertia and passivity. The UN first recognized the right to self-determination of the Saharawi population in 1966 and since that moment, it has supported and promoted their right to freely determine the future of the nation. However, due to the impossibility of reaching an agreement and the economic and political interests forged over the past 20 years with Morocco, the UN Security Council pivoted to an approach based on UN-facilitated dialogue to encourage the parties to develop a mutually agreed plan. In so doing, the UN Security Council further relinquished its control over the process by handing it over to Morocco and Polisario. As a result, the MINURSO’s initial mandate, to organize a self-determination referendum, receded into the background and a ceasefire monitoring the increasingly futile search for “a negotiated political settlement” took center stage. The Moroccan authorities, which had the advantage conferred by the de facto occupation, strongly rejected any agreement involving a loss of control over the territory. Similarly, the Sahrawi population continued to argue that the only possible solution to the conflict was the organization of a referendum giving the option of independence to Western Sahara.
End of the ceasefire
On 21 October 2020, several dozens of Saharawuis, members of a “civilian committee” and from the Tindouf camps, blocked the Guerguerat crossing and the demilitarized buffer zone for 20 days. With such action the activists sought to draw international attention, recalling that the 1991 Agreement was blocked and that Morocco illegally controlled that area. However, the United Nations only seemed concerned with the traffic as both the United Nations and the European Union called for the re-establishment of traffic without mentioning the claims of the Saharawis. In view of that, the Sahrawis recalled that traffic was not within the MINURSO’s faculties and that the road was an illegal breach of the 1991 agreements. On 30 October, the United Nations Security Council adopted a new resolution (S/RES/2548) which was increasingly removed from the principles of international law that should govern the process; its silences were loud: it did not mention the referendum or any concrete measures to revive the political process (Barreñada, 2021). Finally, in November 2020, Polisario declared an end to the 1991 UN-brokered ceasefire and resumed violent attacks against Moroccan forces after Moroccan armed forces crossed the armistice line on 13 November and entered the Guerguerat demilitarised UN buffer zone, which is inside de facto SADR territory, to disperse Sahrawi protesters blockading traffic on the only road connecting Western Sahara (and Morocco) to Mauritania (Lovat and Mundy, 2021).
The first and main reason for the return to hostilities in November 2020 was the exhaustion and collapse of the Settlement Plan as conceived in the late 1980s and launched in 1991. The original objective of holding a referendum on self-determination could not be achieved because of Morocco’s attitude; first through delays and obstacles, and finally, in 2000, because of the absolute refusal to carry out a consultation that is expected to lose (Ruiz Miguel, 2021).
The process of self-determination is still blocked with Morocco reaffirming that the only way out of the conflict is to accept its autonomy proposal to the Sahrawi people and the SADR’s Polisario Front with the legitimate demand for a real self-determination referendum that will lead to their independence.
The legal status of Western Sahara:
Articles 1 §2 and 55 of the Charter of the United Nations establish the right to self-determination with the aim of “developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” Similarly, on 14 December 1960, General Assembly resolution 1514 (XV) subtitled “Declaration on the Granting of Independence to Colonial Countries and Peoples” condemned “the subjection of peoples to alien subjugation, domination, and exploitation” and stated that “immediate steps shall be taken… transfer all powers” to the peoples in the colonies “without any conditions or reservations, following their freely expressed will and desire… to enable them to enjoy complete independence and freedom.” And, complemented by Resolution 2625 (XXV) of 24 October 1970, the United Nations confirmed the “principle of equal rights and self-determination of people”.
Concerning Western Sahara, according to UN General Assembly Resolution 1452 (XV) of 15 December 1960, it is to be considered as a Non-Self-Governing Territory and consequently on the waiting list to be decolonized. The right to self-determination of the people of Western Sahara was first recognized in 1966 (A/RES/2229) when the territory was under Spanish rule. Since 1965, the General Assembly considered the question of Western Sahara under the «Declaration for the Granting of Independence to Colonial Countries and Peoples». However, to avoid any confusion by trying to say that «independence» should be achieved through the integration of Western Sahara into another country, the organs of the United Nations expressly recognized that the people of Western Sahara have a «right to self-determination and independence». To dispel any doubts about the right to independence of the people of Western Sahara, the General Assembly asked the International Court of Justice what legal links existed between Western Sahara and the Kingdom of Morocco and the Mauritanian complex and the Court concluded that it did not found any legal ties of territorial sovereignty between these three states (ICJ Western Sahara, 1975, para. 162).
The Sahrawi people’s right to self-determination, including the option of independence, has been consistently reaffirmed by resolutions passed by the UN General Assembly (A/RES/75/106, 2020) and the UN Security Council (S/RES/2548, 2020).
The status of the Sahrawi Arab Democratic Republic (SADR), which Polisario declared a state in 1976, is even more contentious. Even though SADR is a founding member of the African Union (AU) and has acquired bilateral recognition from dozens of nations, several of them, including AU member states, have suspended or revoked it. As an implied acknowledgment of Morocco’s claims to the territory, the Moroccan government has persuaded a number of its African and Middle Eastern allies to open consulates in occupied Western Sahara (Lovatt and Mundy, 2021). The United States, under Trump’s Presidency, appears to be the world’s sole country to recognize Moroccan sovereignty over Western Sahara.
Western Sahara is unique among the 17 remaining non-self-governing territories not only because it is the last African territory awaiting decolonization, but also because it lacks an UN-recognized administrative authority prepared to take on that duty. As a result, international rulings on Morocco’s position inside the parts of Western Sahara it governs have been contradictory.
Morocco is not recognized by the United Nations as the legal administrator of the non-self-governing territory (a status that Morocco has not sought). The UN, along with the majority of the international community, rejects Moroccan claims to sovereignty over the region.
According to international law as well as the UN General Assembly, the AU and the CJEU’s advocate general opinion (C‑266/16), Morocco’s presence in Western Sahara is that of an occupying power beholden to international humanitarian law, including the Geneva Conventions.
The European Commission and the Council of the European Union have referred to Morocco as the non-self-governing territory’s “de facto administering power”, a legal notion that does not exist in international law, according to the CJEU’s advocate general opinion (C-266/16). Meanwhile, the status of the area and Morocco’s presence there has been termed as “undetermined” by the United Kingdom.
EU’s approach:
Morocco’s geopolitical importance, its vital position in managing migratory flows and fighting terrorism, as well as the need for post-colonial policies to continue to exploit external resources, have fueled the EU’s determination not to adopt a central role in the settlement of the conflict involving the Saharawi community. (Contini, 2019)
The agreements that the European Union has concluded with Morocco de facto include Western Sahara, neglecting the numerous UN resolutions, the Principle of Permanent Sovereignty over Natural Resources, and the Principle of Self-determination of Peoples.
Since 2016, the European Union’s Court of Justice (CJEU) has delivered numerous judgments on several agreements between the EU and Morocco. These rulings, which ruled that Western Sahara, a non-self-governing area, has a separate and distinct status from Morocco, have resulted in a division between EU bodies. In this regard, the CJEU’s decision to recognize the Polisario Front (PF) as the legitimate representative of the people of Western Sahara went against the Parliament’s, Commission’s, and Council’s long-held position that the Western Sahara conflict arose from postcolonial relations between France and Spain, on the one hand, and postcolonial relations between France and Spain, on the other (Suárez-Collado and Contini, 2021). Finally, the European Court of Justice has represented a turning point in the Sahrawis’ ability to exert pressure on Euro-Moroccan relations as its position has been clear. In that sense, in response to the Polisario Front’s actions claiming the annulment of the EU-Morocco Agriculture Agreement, the EU-Morocco Fisheries Partnership Agreement, the EU-Morocco Aviation Agreement, the CJUE, in the rulings on cases C-104/16 P and C-266/16, has stated that “By concluding that agreement, the EU was in breach of its obligation to respect the right of the people of Western Sahara to self-determination and not to recognize an illegal situation resulting from breach of that right and has not put in place the safeguards necessary to ensure that the exploitation of the natural resources of Western Sahara is for the benefit of the people of that territory”.
In fact, despite its global commitment to safeguarding human rights, the EU has consistently chosen to be a payer rather than a player in the Western Sahara dispute. On the one hand, it sends humanitarian aid to the RASD’s refugee camps in Algeria’s southeast, and it reiterates its official position of support for the UN’s efforts to resolve the crisis through the Directorate-General for the European Civil Protection and Humanitarian Aid Operations (DG ECHO). On the other side, the Moroccan “solution,” which entails giving the occupied territories of Western Sahara a high level of autonomy, is steadily gaining traction through trade deals (Contini, 2019).
Towards a solution:
A peaceful settlement of the conflict concerning the Saharawi population requires that the international community, including European governments, the US Administration, the African Union, and the United Nations jointly push for several concrete steps.
The first step is to fill the position of the personal envoy of the UN Secretary-General Western Sahara as well as negotiating a ceasefire. In this sense, incorporating a human rights monitoring mechanism into MINURSO’s mission, which would be applicable both in the disputed territory and in the Sahrawi camps in Tindouf, would draw more international attention to any future human rights breaches committed by both parties. While securing the parties’ consent is advantageous, the UN Security Council should relinquish its veto authority over the selection process and instead of merely facilitating dialogue, the next envoy must have the political strength to drive forward an UN-developed plan to organize the promised and agreed referendum of 1991 (Lovat and Mundy, 2021). This would show that the Security Council is committed to increasing the cost of inaction for any party unwilling to take action (Amirah-Fernández and Werenfels, 2021).
Concerning the EU’s role, it is to be an important leader due to the physical proximity to the Western Sahara, their trade relations, close partnership with Morocco, and influence on the UN Security Council. This will almost certainly need them to strengthen their institutional capacities, beginning with the establishment of a Western Sahara desk within the European External Action Service and, additionally, the EU might nominate a special representative to lead its diplomatic efforts (Lovat and Mundy, 2021). Finally, the EU and its member states should leverage their economic ties with Morocco, ensuring that they adhere to the EU’s guidelines for supporting international humanitarian law compliance.
Bibliography:
Alemañ, R. (2018), “El derecho a la autodeterminación de los pueblos en la protodiplomacia parlamentaria catalana: los casos palestino y saharaui”, Comillas Journal of International Relations, nº 11.
Amirah-Fernández, H. And Werenfels, I. (April, 2021), “Western Sahara: can a Trump tweet lead to unlocking the stalemate?”, Real Instituto Elcano .
Barreñada, I. (2021), “Sahara Occidental. Es hora de una nueva implicación internacional, pero radicalmente diferente”, Anuario CEIPAZ.
Contini, D. (2019), “The EU illegal exploitation of Western Sahara natural resources”, Western Sahara Resource Watch.
Kassoti, E. (March, 2017), “The Front Polisario v. Council Case: The General Court, Völkerrechtsfreundlichkeit and the External Aspect of European Integration”, Insight European Papers, vol.2, nº 1.
Lovatt, H. And Mundy, J. (May, 2021), “Free to choose: a new plan for peace in Western Sahara”, Policy brief of the European Council on Foreign Relations.
Navarro, N. (2012), “El conflicto del Sáhara Occidental: la libre determinación en retirada”, Paz, Migraciones y Libre Determinación de los Pueblos.
Rodríguez, M. (2017), “El derecho a la libre autodeterminación de los pueblos y el caso fallido del Sahara Occidental. Los límites del cosmopolitismo y la ecosoberanía como propuesta alternativa”, Araucaria; Revista Iberoamericana de Filosofía, Política y Humanidades, vol. 19.
Ruiz, C. (September, 2015), “El principio y derecho de autodeterminación y el pueblo del Sahara Occidental”, Anuario Español de Derecho Internacional, vol. 31.
Suárez-Collado, Á. And Contini, D. (April 2021), “The European Court of Justice on the EU-Morocco agricultural and fisheries agreements: an analysis of the legal proceedings and consequences for the actors involved”, The Journal of North African Studies, available at: https://doi.org/10.1080/13629387.2021.1917122.
By Blanca Prat: The European Institute for International Law and International Relations.
