FACTS

The lingering dispute between the Frente Polisario Front proclaiming Sahrawi Arab Democratic
Republic and the Kingdom of Morocco whirls around the territory of Western Sahara. It emanated
in the 19th century when the Europeans were leisurely colonizing Africa.

The Colonization being hastened was overseen by the Berlin Conference of 1884 in order to avoid
any conflict among the Europeans. By 1914, ninety percent of Africa was under their control,
while the majority of the area went to the French and the British while Western Sahara was given
to Spain.

On the establishment of the UN after World War II colonization slowly and steadily was losing
rationale and the UN also went all out to promote International peace and harmony, due to which
it got fundamentally against colonization as stated in Article 73 of the UN Charter. Throughout
the 1960s the UN made an effort to decolonize the African continent. By the late 1970s, the entire
continent had been decolonized except for the region called Western Sahara.

In 1973, the Polisario Front got established and claimed to end the Spanish colonial rule in Western
Sahara and fight for the right to self-determination and independence of the indigenous Sahrawi
people. During that time the region was being averted by four parties’ i.e. Spain, Morocco,
Mauritania and lastly The Polisario Front. During that same period, Spain was being pestered by
the UN to decolonize Western Sahara (at that time Spanish Sahara); Spain eventually agreed on
decolonizing Western Sahara and decided to hold a referendum so that the Sahrawi people could
choose between the Frente Polisario, Morocco, and Mauritania. But on the other hand, Morocco
requested the referendum be postponed calling for a hearing from the ICJ regarding Moroccan
sovereignty over Western Sahara and this request later got the official stamp.

But the UN visiting mission to Western Sahara found a stupendous census towards a referendum.
In some time the UN published its advisory opinion and the ICJ acknowledged that Morocco and
Mauritania had historical ties with the region but nothing would pertain to any legal sovereignty.

The referendum thus was officially given the “Green Signal” but it eventually had a faceoff with
the “Green March”. As hours after the court’s opinion, Morocco began organizing this march to
put pressure on Spain to transfer sovereignty to them on the other hand there was no resistance at
all from the Spanish forces as they entered Western Sahara. Major conflicts started erupting
between the two major stakeholders Frente Polisario and Morocco and lead to the Western Sahara
War in 1975 (which continued till 1991).

Meanwhile after the Madrid Accords of 1975 (A temporary tripartite administration in which Spain
handed administrative control of Western Sahara over to Morocco and Mauritania) when Morocco
and Mauritania started moving in Western Sahara; they were heavily resisted from the Polisario
troops with significant backing from Algeria. Subsequently, Spanish forces moved away from the
territory. The very next day the Polisario Front proclaimed The Sahrawi Arab Democratic
Republic claiming Western Sahara as their land.

In 1979 Mauritania and SADR signed a peace treaty and Mauritania deserted all claims to Western
Sahara, but after that Morocco quickly moved in the land left. Simultaneously, in 1982 the Sahrawi
Arab Democratic Republic was admitted to the Organization of African Unity as the government
of Western Sahara. In effect of that Morocco withdrew its membership.

In 1991 after nearly 16 years of war, Morocco and the Polisario Front signed a ceasefire agreement;
a part of the ceasefire agreement was that referendum would take place within 6 months under the
MINUSRO mission. But till now nothing has happened, currently, Morocco controls eighty
percent of the area and The Frente Polisario Front exiled in Algeria controls the remaining twenty
percent.

ARGUMENTS

I. The question of Terra Nullius (Land belonging to no one)

On this question, the stand of the Sahrawi’s has been lucid and many advocates have laid stake to
the claim that Rio de Ora and Saguia-el-Hamra two territories which formed part of the Spanish
province of Spanish Sahara (now Western Sahara), is not at all terra nullius. And according to
them this issue in its totality does not aver that the territory belongs to Morocco.

In relation to the contention raised, The General Assembly requested an advisory opinion in
relation to this very dispute, one of the questions on which the advisory opinion was requested was
‘Whether Western Sahara (Rio de Oro) and (Saguia El Hamra) at the time of colonization by Spain
was a territory belonging to no one (terra nullius)?’.The court held that “Colonization by Spain
started from 1884 when it proclaimed a protectorate over the territory.” Therefore the court
interpreted ‘terra nullius’ by citing the law in force at that time as an Inter-temporal law which
refers to the law international courts apply to evaluate revisions in international law after the
formulation of a treaty and alterations in the meaning of expressions in the treaty. Thus, it held
that the state practice of the relevant time indicated that territories inhabited by tribes or people
having a social and political organization were not regarded as ‘terra nullius’.

It was also held that Western Sahara during Spanish colonization was inhabited by people who
were mostly tribal and under chiefs adept to represent themselves. In other words, the International
Court of Justice in that advisory opinion determined that Western Sahara belonged to the Sahrawi
people and not Morocco before colonization.

II. The Fraudulent transfer and the illegality of Morocco’s claims

And finally, the struggle of the Sahrawi people coupled with international solidarity forced Spain
to quit Western Sahara in 1975. But instead of decolonizing it, the territory got handed over to
Mauritania and Morocco with the help of an agreement called the ‘Madrid Accords’. But most of
the Sahrawi activists claim it to be a fraudulent transfer. Referring to a letter dated 29th January,
2002 from the Under-Secretary-General for Legal Affairs, The Legal counsel; Addressed to the
president of the Security Council and emphasizing on the letter’s 6th and 7th point it can be said
that Morocco’s claims on Western Sahara can be challenged strongly and even top officials of the
U.N. accepted that. “The Under-Secretary-General for Legal Affairs (Hans Correl) forwarded a
letter to the President of the Security Council and in its 6th and 7th point had stated that The Madrid
Accords did not shift sovereignty over the territory and also did not bestow upon any party the
status of the administrating power, and that Spain could not have unilaterally transferred it. And
also stress was put on the fact that the transfer of the territory to Morocco and Mauritania in 1975
did not affect the international status of Western Sahara being a Non-self-governing territory and
even if Morocco has administered the territory alone upon the conclusion of the Mauritano-
Sahrawi agreement of 19th August 1979, it is not listed as the administrating power of the territory
in the UN list of Non-self-governing territories.”

The same was also confirmed by a Spanish national research institute called The Elcano Royal
Institute of International & Strategic Studies (Spanish Government think tank), In a report dated
5/4/2014 named ‘The international dimension of the conflict over Western Sahara and its
repercussions for a Moroccan alternative’.

Also, Resolution AHG1Res.16 (1984) passed by the OAU (Organization of African Unity) which
solemnly declared that all member states pledge themselves to respect the borders existing on their
achievement of national independence. When OAU changed to AU (African Union) it also
included the same concept in its constitutive act, Article 4(b) which states that the AU shall ensure
the respect of the borders existing on achievement of independence. And when Morocco gained
independence in 1956, Western Sahara was not a part of Morocco. But no matter what Morocco’s
policymakers stand for; most critics and commentators are of the view that the AU provisions
apply to Morocco as it was a founding member of the OAU and when this resolution was passed
Morocco’s representatives were present there and they gave it the green signal.

The advisory opinion dated 21st June 1971 on the illegal occupation of Namibia by South Africa,
is also important in this argument as when South Africa had occupied Namibia (almost as similar
to Morocco’s occupation of Western Sahara; An advisory opinion was requested by Namibia and
in the judgement South Africa was terminated as the administrator of the territory of Namibia on
the basis of violation of various international laws and many believe that the same criteria appertain
to Morocco.

III. Self Determination for the people of Western Sahara

Self-determination is a basic right in international law which states that the people collectively
have a right to determine their own statehood or as to who should govern them and all this should
be applicable to Western Sahara as the people living there believe that they also form part of the
International law.

On the founding of the UN in 1945, Article 1(2) of its Charter specified that one of the purposes
of the organization was to develop friendly relations among nations based on the respect for the
principle of equal rights and self-determination for the people and to take others appropriate
measures to strengthen universal peace. Chapter XII of the International Trusteeship System in
Article 76 states that the basic objects of the system are to promote the will of the people and to
abide by their wishes even to the extent of self-determination or independence. Article 73(e) of
Chapter XI: Declaration regarding Non-self-governing territories also states that they are subject
to self-determination. And as General assembly resolution 1541 & 1542 declare Western Sahara a
“Non-self-governing territory” the article is applicable to Western Sahara.

It is also noted that The Additional Protocol 1 of the Geneva Conventions of 1949 (1977);
clearly recognizes self-determination as a right in International Law under Article 1(4).
On the other hand, there have been plenty, ICJ opinions relating to the recognition of the
principle of self-determination.

Firstly the ICJ acknowledged the right to self-determination in its Namibia opinion 1971 as stated
earlier. Then the court moved one step further in The East Timor Case (Portugal Vs Australia) by
stating that Portugal’s allegations of self-determination being of ergaomnes nature are
irreproachable. The court also defined that right of self-determination is ‘one of the essential
principles of contemporary international law.

Also in the earlier mentioned Advisory opinion on Western Sahara ‘The court also stated that the
principles of self-determination shall be applied in the territory of Western Sahara through the
genuine and free expression of the will of the people of the territory. Thus, these international laws
and opinions by the ICJ lay stake to the claim that the people of Western Sahara have a right of
self-determination.
 Source:

Sharma, Vishal. (2018). Western Sahara Case Study: The Sahrawi Argument for Self
Determination. Human Rights International Research Journal. 6.