(Being the Paper delivered by FEMI FALANA at the International Congress of Lawyers of Western Sahara held in Alicante, Spain from 29-30, April, 2011)

Introduction: During the 19th Century relationship between Spain and the Saharawi people were limited to questions concerning fishing in the Canary Islands. In 1884, Spain proclaimed a protectorate from Cape Blanc to Cape Bojador. The proclamation was ratified at the Berlin Conference of 1885 where Africa was partitioned among European powers. The annexation of the territory by Spain was fiercely opposed by the Saharawi people.

Although most African countries became independent in the 1950s and 1960s Spain refused to recognize the right of the Saharawi people to self determination. Owing to pressure from the United Nations, Western Sahara was listed as a non-self governing territory under Chapter XI of the United Nations Charter in 1963. In spite of the baseless intransigence of Spain the United Nations General Assembly passed a resolution for the liberalization of Western Sahara in 1965.

The struggle of the Saharawi people for independence coupled with international solidarity forced Spain to quit Western Sahara in 1975. But instead of decolonizing the territory Spain handed over its administration was handed over to Mauritania and Morocco. However, the Saharawi people have continued to challenge the fraudulent transfer of the territory to the new colonizers.

The Right to Self Determination under International Law: The principle of self-determination of peoples has been subject to a conceptual evolution which began in post-Second World War era and accelerated in the 1960’s due to the decolonization process. This evolution pertains to the transformation of self-determination which was firstly conceived as a political principle to a peremptory legal norm, i.e. jus cogens. The adoption of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights constitute important milestones in this regard. See Common Article 1 of the two covenants. Article 1(2) of the UN Charter, which is a part of the Chapter I dealing with the principles and purposes of the UN, refers to the concept of self-determination while laying down one of the four purposes of the body. In addition, in the Article the self-determination of peoples is cited as a principle on which “peaceful and friendly relations among nations” are conceived to be based.

However, the UN Charter does not refer to a right of self- determination and it does not clarify who the ‘self’ is that enjoys this principle which should be respected by nations. Nevertheless, the conception of the principle in the UN Charter constitutes an important expression of a political principle. Thus, the Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by the General Assembly in 1960 by eighty-nine votes in favour, none against with nine abstentions provides that; “all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.

The Declaration laid the foundation for the inclusion of the principle in Common Article 1 of the two covenants mentioned above. Also, one of the important results of the Declaration is that it included self-determination as a fundamental human right, bringing it within the scope of the Universal Declaration of Human Rights 1948. Common Article 1 provides: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” .

It is submitted that the widespread adoption and ratification of these Covenants, including by African governments, gives the right to self- determination legal force established by treaty. Indeed, the Covenants constituted at the year of their adoption the most important legal norm ever on the question of self-determination. Before the Covenants, only certain General Assembly resolutions had material provisions regarding self-determination. This right therefore enjoys a higher ranking in the hierarchy of legal norms. Similarly, the right of self-determination is not restricted to a political or civil right but propounded as the gateway to economic, social and cultural rights. Another significant feature of Common Article 1 is that it envisages the free determination of “political status” and “economic, social and cultural development” of all peoples that should also be able to “freely dispose of their natural wealth...”

It should be noted that during the discussions in the committees dealing with the preparation process of the Covenants, some delegates opposed the inclusion of Article 1 by arguing that the UN Charter referred to the principle of self-determination, but not to a right. On the other hand, the advocates of the right of self-determination “insisted that this right was essential for the enjoyment of human rights and should... appear in the forefront of the Covenants”  Finally, the Covenants were adopted as they have the provision that proponents of the right of self-determination wanted to be in the text. This was the major sign of development of the concept of self-determination which has evolved from a political principle to a legal norm associated with human rights.

Another important document is the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the UN (The “1970 Declaration”) was a clarification of the purposes and principles of the United Nations. This resolution, which stipulates that “by virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all people have the right freely to determine... their political status”, also imposes on all states the obligation to respect the right of self-determination in accordance with the UN Charter.

Therefore, the 1970 Declaration can be regarded as constituting an authoritative interpretation of the seven Charter provisions it expounds. Due to the fact that the 1970 Declaration passed with no vote against, and therefore it was adopted with a wide consensus, it is argued that this Resolution encompasses norms of jus cogens”. Indeed, the entire 1970 Declaration can be said to contain norms of jus cogens since they were passed consensually by member states and are therefore evidence that custom exists in international practice to this effect”

In addition to the above, there have also been numerous ICJ opinions on the principle of self determination. First, the ICJ acknowledged the right to self-determination in its Namibia opinion (1971) as “a principle in international law as enshrined in the Charter and its further development in the Declaration on Colonialism (1514(XV) ), which refers to a right to self-determination”

The Court moved one step further in the East Timor (Portugal v. Australia) case” by stating that Portugal’s allegation that the self-determination has an erga omnes nature, is “irreproachable”. The Court also defined the right of self-determination as “one of the essential principles of contemporary international law”. It should be noted that the Additional Protocol I to the Geneva Conventions of 1949 (1977) clearly recognized the self-determination in its Article 1(4) as “a right in international law”.

ICJ’s Advisory Opinion on Western Sahara: In its Advisory Opinion which the General Assembly of the United Nations had requested on two questions concerning Western Sahara, the ICJ, with regard to the question whether  "Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?", was unanimously of opinion that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain was not a territory belonging to no one (terra nullius). With regard to the question "What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?", the Court was of opinion, by 14 votes to 2, that there were legal ties between this territory and the Kingdom of Morocco of the kinds indicated in the penultimate paragraph of the Advisory Opinion.

The court also held by 15 votes to 1, that there were legal ties between this territory and the Mauritanian entity of the kinds indicated in the penultimate paragraph of the Advisory Opinion.It was the view of the International Court of Justice that:

“The materials and information presented to the Court show the existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. They equally show the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara. On the other hand, the Court's conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. 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 Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.

The Court examined the resolutions adopted by the General Assembly on the subject, from resolution 1514 (XV) of 14 December 1960, the Declaration on the Granting of Independence to Colonial Countries and Peoples, to resolution 3292 (XXIX) on Western Sahara, embodying the request for advisory opinion. It was further stated that:

“The decolonization process envisaged by the General Assembly is one which will respect the right of the population of Western Sahara to determine their future political status by their own freely expressed will.” The court also said that, “This right to self-determination, which is not affected by the request for advisory opinion and constitutes a basic assumption of the questions put to the Court, leaves the General Assembly a measure of discretion with respect to the forms and procedures by which it is to be realized. The Advisory Opinion will thus furnish the Assembly with elements of a legal character relevant to that further discussion of the problem to which resolution 3292 (XXIX) alludes.”

For the avoidance of doubt the International Court of Justice concluded thus:

“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 tribes.”

The ruling was accepted by the people of Western Sahara. But both Mauritania and Morocco rejected it and proceded to suppress the legitimate demand of the Saharawis for independence. However, due to the increasing resistance of the people against the illegal occupation Mauritania was compelled to renounce its claim to the territory in 1979. Although Morocco has remained intransigent the Saharawis have continued to prosecute the war for their independence.

Following the frustration of the implementation of the United Nations resolution on Western Sahara the Security Council has by Resolution 1979 extended the mandate of the UN Mission for Referendum in Western Sahara until April 2012. Any attempt by the Moroccan government to breach the deadline and further delay the referendum should attract appropriate sanctions from the Security Council and the international community.

Diplomatic Recognition of the SADR: No doubt, the ruling of the International Court of Justice on the status of Western Sahara has tilted global opinion in favour of the Saharawis. The African Union has admitted the territory as a full fledged member while the SADR has been recognized by 75 nations including several African countries. In line with the position of the African Union Thabo M’beki defended the diplomatic recognition given to the Saharawi Arab Democratic Republic when he said:

“For us not to recognize SADR in this situation is to become an accessory to the denial of the people of Western Sahara of their right to self-determination. This would constitute a grave and unacceptable betrayal of our struggle, of the solidarity Morocco extended to us, and our commitment to respect the Charter of the United Nations and the Constitutive Act of the African Union” (Letter from President of South Africa to King of Morocco, 1 August 2004. See http://arso.org.site.voila.fr/MBK.htm)

Convinced that the independence of Western Sahara is not negotiable the decision of Morocco to withdraw from the African Union has been treated with disdain. Indeed, as far as most African are concerned the illegal occupation of Western Sahara by Morocco is viewed like apartheid, as a crime against humanity.

The SADR should embark on enlightenment campaign in Africa so as to mobilize their governments to mount diplomatic offensive against the government of Morocco. In addition to the efforts of the Amnesty International and Human Rights Watch the human rights community and other civil society organizations in Africa should take up the massive violations of the human rights of the Saharawis by Morocco. From time to time, complaints of human rights violations should be filed before the African Commission on Human and Peoples Rights and the Human Rights Committee of the United Nations.

The governments and civil society groups in some African countries have recently joined issues with the Moroccan government over its illegal occupation of Western Sahara. In April 2010 over 30 civil society groups in Nigeria called on the United Nations to protect human rights in Western Sahara and to enable the Saharawi people to exercise their right to self determination and independence. Embarrassed by the increasing solidarity of Nigerians with the Saharawi people the Moroccan Secretary of State, Ministry of Foreign Affairs and Cooperation, Mohammed Quzzine has called on Nigeria to remain neutral in the crisis. (Pan African News Agency, April 10, 2011)

I am happy to announce that the Committee for the Defence of Human Rights (CDHR) and Socio-Economic Rights and Accountability Project (SERAP), two human rights bodies in Nigeria, have concluded arrangements to report the King of Morocco to the Special Prosecutor of the International Criminal Court for genocide and crimes against humanity committed against the people of Western Sahara.

Hypocrisy of Western Governments:  The dubious attitude of western countries to the independence of western Sahara is economic and strategic. The territory is rich in mineral deposits especially phosphates, uranium, iron, crude oil and natural gas. The fishing grounds are equally rich. Since the leadership of the SADR is not prepared to be a puppet western countries have to resolved to support Morocco in frustrating the Saharawi people in their independence struggle.

In a desperate move to consolidate its illegal authority on Western Sahara the government of Morocco entered into the EC-Moroccan Association Agreement with the European Union. In defiance of settled principles of international law the Agreement has merged the economies of SADR and Morocco together. Under the Agreement European countries have engaged in the reckless exploitation of the mineral resources of Western Sahara.

Since the Agreement is said to form an integral part of European Community Law it is suggested that the Saharawi community in Europe should challenge the legal validity of the Agreement in the European Court of Human Rights on the authority of Queen v. Minister of Agriculture, Fisheries and Food ex parte Anastasion (Pissoun). See also International Court of Justice Advisory Opinion on Namibia. In the same vein, a vigorous campaign should be embarked upon in the United States to compel the Obama Administration to change its reactionary position on Western Sahara. In particular, the independence of Western Sahara should be at the centre of the United States foreign policy on Africa. The Allied Forces of Imperialism currently waging a full scale war against Libya under the pretext of protecting the civilian population have closed their eyes and ears to the atrocities committed by the Moroccan government against the Saharawi people.

 

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