Indigenous Law Bulletin
by Kamal Fadel
Western Sahara is situated in northwest Africa along the Atlantic coast. It was a Spanish colony for almost one hundred years. In 1975, Spain signed a secret agreement with Morocco and Mauritania and handed the territory to them. In 1979, Mauritania abandoned its territorial claim over Western Sahara and signed a peace treaty with the Indigenous people of Western Sahara. However, Morocco maintains administrative control and continues to claim sovereignty over most of the territory. The United Nations (‘the UN’) and the Organisation of African Unity (‘the OAU’) are trying to organise a referendum on self-determination in Western Sahara, which is scheduled to take place in July 2000.
In the following article I will discuss whether the Sahrawi people of Western Sahara constitute a people entitled to the right to self-determination under customary international law. The distinctiveness of the Sahrawis as a people who are different from surrounding nations will be examined in both pre-colonial and colonial contexts as well as in relation to Morocco’s claims to sovereignty over traditional Sahrawi territory.
Before the Spanish arrived in Western Sahara, the area was inhabited by a group of tribes who were known as the ahel es-Sahel: people of the littoral or Atlantic Sahara, now known as Sahrawis. They had their own system of government called the ait arbain or ‘The Council of Forty’. The Council would usually meet to discuss the affairs of the population and in times of war or crisis. The Council organised the Sahrawis’ resistance to Spanish, French and Portuguese attempts to occupy their land and succeeded in keeping colonial powers out of the territory from 1500 to 1934. In 1934, the French and Spanish combined forces to ‘pacify’ the Sahrawi resistance to colonisation.
The Sahrawis see themselves as a nation separate and distinct from neighbouring peoples in what is now North Western Africa. Traditionally, they lived as nomads and warriors. The arid terrain, mainly desert, molded their culture and shaped their distinctiveness. They speak a dialect of Arabic called Hassania, which is unlike the Tashelhit dialect spoken by the Berbers of Morocco. Other features such as social customs, diet and clothes emphasize their distinctiveness.
The Sahrawis’ experience of colonisation by the Spanish was different from that of Morocco, which was colonised by the French, further enhancing the differences between Sahrawis and Moroccans. Another factor contributing to Sahrawis’ modern distinctiveness to Moroccans is the growth of nationalism in Western Sahara.
Sahrawi nationalist sentiments grew when more Sahrawis were educated and became aware of the struggles of peoples demanding independence in other parts of Africa and the world. In late 1967, Sahrawis set up a movement called Harakat Tahrir Saguia el-Hamra wa Oued ed-Dahab (Organisation for the Liberation of Saquia el-Hamra an Oued ed-Dahab) to demand a peaceful transition to independence for Western Sahara. In 1970 it was crushed by the Spanish, when most of its leaders and members were either imprisoned or killed.
When peaceful means failed, Sahrawi students set up a liberation movement called the Frente Popular para la liberacion de saguiet el hamra y Rio de Oro (Polisario Front) on May 10, 1973. The new movement adopted armed struggle against the Spanish and soon the overwhelming majority of the Sahrawis rallied to its ranks, making it an Indigenous nationalist movement without support or encouragement from any external powers.
The Charter of the United Nations recognises the right of peoples to self determination. It also recognises that, largely because of colonialism, not all peoples who claim this right will be immediately able to exercise it fully. Peoples in this situation are deemed to be in non-self-governing territories and for them the UN General Assembly has established de-colonisation programs.
In 1963 Western Sahara was included in the UN list of the non-self-governing territories and in October 1964 the UN Decolonisation Committee adopted its first Resolution on Western Sahara, urging Spain to start the process of decolonising the territory. The UN General Assembly issued a similar Resolution on December 16, 1965.
Between 12 and 19 May 1974, a UN mission of inquiry was sent to report on the situation in Western Sahara. The mission visited Western Sahara, Morocco, Mauritania and Algeria. In its report, it stated that support for Polisario and for independence in Western Sahara was widespread and recommended the holding of a referendum for self-determination. Initially, Spain resisted this call but in August 1974 it informed the UN that it was prepared to organize a referendum on self-determination in the territory. In this referendum, the people of Western Sahara could choose either full independence or to remain attached to Spain. Morocco and Mauritania opposed the referendum idea, which excluded the possibility of integration with Morocco or Mauritania.
In order to postpone the referendum, Morocco, with the support of Mauritania, asked the UN General Assembly to seek an arbitration from the International Court of Justice (‘the ICJ’) and to give legal advice on this matter. On December 13, 1974, the ICJ was asked to give an advisory opinion on: (1) whether or not the Western Sahara had been terra nullius - a territory belonging to no one - at the time of Spanish colonisation; (2) if it was not terra nullius at the time of Spanish colonisation, what was the legal relationship between Western Sahara and Morocco, and Western Sahara and Mauritania?
In international law, sovereignty has two elements: territorial and jurisdictional. Morocco claims that before Spanish colonisation, Western Sahara was Moroccan territory. To satisfy the jurisdictional test for sovereignty, it cites evidence that at the time of Spanish colonisation, some Sahrawi tribes paid allegiance to the Moroccan throne. Specifically, it relies on the Islamic concept of the bayaa or allegiance amounting to ‘a contractual agreement whereby the Muslim community offered a conditional loyalty to its caliph (leader) in response to his recognition of his obligations under the sharia’.
On this basis, it claims firstly that it, not Spain, has a legitimate claim to sovereignty over the territory of Western Sahara. It also claims that the principle of uti possidetis juris, which holds that colonial boundaries cannot be altered on independence or decolonisation, applies to that territory.
The ICJ studied all the documents presented to it by Morocco, Mauritania, Spain and Algeria but the Sahrawis were not allowed to appear before the Court since the ICJ can only hear evidence from States. After twenty-seven sessions, the ICJ issued its opinion on October 15, 1975.
The Court decided unanimously that Western Sahara was not terra nullius when Spain proclaimed a protectorate over it in 1884, since it ‘was inhabited by peoples which, if nomadic, were socially and politically organised in tribes and under chiefs competent to represent them’. The court then gave the conclusion of its opinion regarding the legal ties between Western Sahara, Morocco and Mauritania:
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 resolution 1514 (XV) in the decolonisation 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 decision of the ICJ is of great significance. As Thomas Frank put it, ‘the judges asserted the supremacy of the norm developed by UN resolutions and the practice of decolonisation: the Sahrawi population was entitled to self-determination within the perimeters of the existing colonial entity’. It is clear that the ICJ decision is a rejection of the Moroccan claim of sovereignty over Western Sahara
Despite the Court’s decision, Morocco and Mauritania invaded and occupied Western Sahara in 1975 in a grave violation of international law. The UN Security Council adopted a resolution deploring the invasion and calling on Morocco to withdraw form the Territory but the resolution was never enforced. The invasion provoked a prolonged war causing great suffering to the Indigenous Sahrawis who have since been denied their basic human rights. It is a human tragedy rarely noticed by the rest of the world.
In August 1988, as result of war-weariness and international pressure, Morocco agreed to a UN-OAU peace process. Central to the UN-OAU peace plan (‘the plan’) is the holding of a referendum providing an opportunity for the Sahrawi people to exercise their right to self-determination in a free and fair manner. A cease-fire was declared in September 1991 and a UN mission (MINURSO) was deployed in the territory. According to the original plan, the referendum should have taken place in January 1992. However, it was postponed first until 1996, then until 1998, and is currently scheduled to take place in July 2000.
The peace process has witnessed a new vigour since Kofi Annan became the Secretary General of the UN in 1997 and appointed James Baker III as his Special Envoy for Western Sahara. Negotiations between Morocco and the Polisario were held under the auspices of the UN Special Envoy on many occasions and culminated in an agreement, which was signed in Houston, Texas in September 1997 (‘the Houston Agreement’). The Houston Agreement strengthened the key aspects of the original plan: voter identification, refugee repatriation, troop confinement, release of prisoners, freedom to campaign, access for international observers and the UN authority to ensure a free and fair referendum process. The fact that the Houston Agreement was negotiated by the parties involved and signed under UN auspices has created a real momentum for the whole process.
Although the UN mission has made significant progress in the registration of eligible voters and other preparations for the holding of the referendum in July 2000, the whole process remains fragile. There are still doubts about Morocco's good will and readiness to let the referendum take place.
The right of peoples to self-determination is enshrined in the declarations of the United Nations and the Organisation of African Unity. Furthermore, the ICJ verdict upheld that the Sahrawi people are entitled to exercise this right. Therefore, the invasion and occupation of Western Sahara in 1975 was a violation of international law. Unfortunately, Morocco's act of aggression did not attract a strong reaction from the international community similar to that of the Iraqi invasion of Kuwait or the war in Kosovo.
The UN has so far failed in its efforts in Western Sahara because of the lack of major powers in the international community politically and publicly supporting the referendum. Unlike the referendum process in East Timor, which has benefited from the involvement of regional and international actors, the Western Sahara peace plan has not yet attracted international attention. Unless there is international pressure on Morocco, the chances of the referendum proceeding in Western Sahara are very slim.
It is the duty of the international community to make sure that a final and lasting decolonisation process is achieved in Western Sahara. The alternative to a peaceful solution will be the resumption of hostilities and the destabilisation of the whole region, something the Sahrawis want to avoid. As we approach the next millennium it is tragic that Africa's decolonisation is still incomplete and that the Sahrawi people are still denied their basic and legitimate right to decide their own future.
Kamal Fadel is the representative of Polisario in Australia.
 Note that this deal has no status in International law.
 For a definition of who constitutes a people for the purposes of international law, see the Final Report and Recommendations of an International Meeting of Experts on the further Study of the Concept of the Right of People for UNESCO 22 Feb 1990 SNS-89/CONF. 602/7.
 Customary international law is inferred from state practice. Such practice must be supported by opinio juris; statements by state to the effect that a particular practice relects a legal obligation. See Dixon & McCorquodale (eds) Cases and Materials on International Law (2nd ed, 1991) 26-32.
 Tony Hodges, ‘The origins of Sahrawi nationalism’, in Richard Lawless and Laila Monahan (eds) War and Refugees: The Western Sahara Conflict (1987) 44.
 For the best historical background in English, see Tony Hodges, Western Sahara: The Roots of a Desert War (1983); and John Damis, Conflict in Northwest Africa: The Western Sahara Dispute (1983).
 Article 1 of the United Nations Charter1945.
 Article 73 United Nations Charter1945.
 Declaration on the Granting of Independence to Colonial Territories and Peoples General Assembly Resolution 1514 (XV) 14 December 1960 UNDoc A/4684 (1960), GAOR 15th Session, Supp 16, p66. General Assembly Resolution 1514 (XV) 15 December 1960, Principles VI-IX, UN Doc A/4684 (1960), GAOR 15th Session, Supp 16, p29.
 The Committee’s official title is the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples.
 GAOR, 19th Session, Annex No. 8 (part I), UN Document A/5800/Rev.1 (1964), pp.290-91.
 UNGA Resolution 2072, December 16, 1965, GAOR, 20th Session, Supplement 14, UN Document A/6014, pp.59-60
 Tony Hodges, Western Sahara: The Roots of a Desert War, (1983) 199.
 Principle VI, General Assembly Resolution 1514 (XV) 15 December 1960, Pples VI-IX UN Doc A/4684 (1960), GAOR 15th Session, Supp 16, p29.
 General Assembly Resolution 3292, 29 UN GAOR Supp. 31, UN Document A/9631 1974, paras. 103-4.
 These elements of sovereignty are expressed in Article 2(4) of the UN Charter 1945, which states in part that ‘[a]ll members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State...’. Cf Dixon & McCorquodale, above n 3, chs 7 & 8.
 George Joffe, ‘International Court of Justice and the Western Sahara’ in Richard Lawless and Laila Monahan (eds) War and Refugees: The Western Sahara Conflict (1987) 26.
 Paragraph 6 of the UN Resolution 15 14 (XV) of 1960. Cf Dixon & McCorquodale, above n 3, 266-7 & 301-5; George Joffe, ‘Self-determination and Uti Possidetis: The Western Sahara and the "Lost Provinces"’, (1996) 1 Morocco 10.
 Statute of the International Court of Justice 1945, Article 36(2).
 ICJ Rep 1975 12. Cf Hodges, above n 12, 368.
 ICJ Rep 1975 12 para 81.
 ICJ Rep 1975 12 para 162.
 Thomas Frank, ‘Theory and practice of decolonisation’ in Lawless and Monahan, above n 17, 12.
 S/RES/380 (1975) of 6 November 1975, adopted by the Security Council at its 1854th meeting.
 The Secretary General Report S/21360 adopted by Security Council Resolution S/RES/658 (1990), and Secretary General Report S/22464 adopted by S/RES/690 (1991).
 Articles 1 (2), 55 and 56 of the UN Charter ; Article III (3) of the OAU Charter 1963.