New York City Bar association international law section center for human rights
Report to the house of delegates
Resolution
Resolved. That the American Bar Association urges the President of the United States to support the right of the people of Western Sahara to self-determination under the principles of the UN General Assembly Resolution A/RES/1514 8XV), the Charter of the United Nationsm and international law by :
1. Rescinding the “Proclamation on Recognizing the Sovereignty of the Kingdom of 7 Morocco Over The Western Sahara” issued by President Donald Trump on December 8 10, 2020, and withdrawing the United State government’s recognition of Morocco’s 9 sovereignty over Western Sahara.
2. Urging Morocco, through all available diplomatic channels, to grant the people of 12 Western Sahara self-determination and to adhere to principles of international law by:
(a) allowing the people of Western Sahara to choose freely whether to establish an independent state or agree to incorporation within Morocco;
(b) allowing the people of Western Sahara to freely express their support for 17 independence or a referendum to determine the status of the territory;
(c) affirming the right of the people of Western Sahara to the enjoyment of their 19 natural resources and their right to dispose of those resources in their best interest as 20 affirmed in UN General Assembly Resolution A/RES/61/123; and
(d) using the resources of the territory of Western Sahara only with the permission 22 of the people of Western Sahara and if such use principally benefits such people as 23 required by applicable international law principles.
FURTHER RESOLVED, That the American Bar Association urges the members of 29 Congress to adopt policies and measures that are consistent with principles of 30 international law by
(a) ensuring that any humanitarian or military aid to Morocco included in 33 appropriations or other bills passed by Congress is conditioned on Morocco’s removal of 34 restrictions on the free speech or movement of the people of Western Sahara, its 35 willingness to permit journalists free access to Western Sahara, and its willingness to 36 accept a solution that would include the option of independence for the territory; and
(b) passing legislation in Congress that would ensure that all importations from 38 Western Sahara as well as business between United States entities and Western Sahara 39 comply with international law principles concerning the use of resources of Non-Self40 Governing Territories; and
FURTHER RESOLVED, That the American Bar Association urges the President of the 43 United States to have the U.S. Ambassador to the United Nations support in the United 44 Nations Security Council the expansion of the mandate of the U.N. Mission for Western 45 Sahara (MINURSO) to monitor human rights violations in both Western Sahara and the 46 Polisario camps and to introduce a resolution in the United Nations Security Council to 47 that effect.
RAPPORT
Introduction
In 1963 Spanish Sahara,1 now known as Western Sahara, was included on the UN’s list of Non Self Governing Territories whose people were entitled to self-determination under the policy of the United Nations concerning the de-colonization of territories held by Western governments.2 In 1974 Spain agreed to allow the Sahrawis a referendum under which they could choose either independence or some other status.
However, before that referendum could be held Morocco and Mauritania interposed claims of sovereignty over the territory based upon alleged ties between the territory and their rulers in pre-colonial days and in 1974 convinced the United Nations to have Spain postpone the referendum in order to have their claims adjudicated by the International Court of Justice (ICJ). The U.N. agreed, but sent a Mission to ascertain the wishes of the people. In 1975 this Mission issued a report indicating that the overwhelming majority of the people wished independence and not integration with another state. 3 Shortly thereafter the ICJ issued an Advisory Opinion rejecting the claims of both Morocco and Mauritania and confirming the right of the people of the territory to self-determination.4 Despite this ruling the King of Morocco threatened to send thousands of Moroccan civilians into the territory to claim it unless Spain agreed to withdraw.5
Faced with this threat Spain withdrew from the territory and in 1975 both Morocco and Mauritania sent troops to occupy it.6 Roughly half the inhabitants then fled the cities.7 However, after being bombed by Moroccan aircraft, they were offered asylum in Algeria.8 To this day they and their descendants remain in refugee camps in the desert at a place called Tindouf. The occupation also ignited a war with the Polisario, a Sahrawi independence movement.
Mauritania withdrew from the territory in 1979, but the fighting between the Polisario and Morocco only ended in 1991 when Morocco agreed to permit the United Nations to conduct a referendum through which the Sahrawis could choose whether Western Sahara would be an independent state or part of Morocco, and a ceasefire was declared. This agreement was called the Settlement Plan.
The parties accepted the Plan in principle in 1988,9 and on June 18, 1990, the Secretary General issued a report 10 outlining further details. 11 Throughout this period Western Sahara still remained on the United Nation’s list of Non-Self-Governing Territories whose people are entitled to self-determination, and remains on that list today.12
Following the ceasefire the conduct of the referendum was placed under the aegis of the U.N. Security Council and a U.N. Peacekeeping Mission called MINURSO was created to conduct it. In 1999 the U.N. published a list of persons eligible to participate in the referendum according to the criteria and procedures agreed to by the parties. However, Morocco subsequently pulled out of the referendum process when it saw that the list was not in its favor and that it could not re-litigate eligibility determinations through the appeals process.13
Rather than press Morocco to go forward with the Settlement Plan, the Security Council in 2000 adopted a resolution calling for a mutually acceptable “political solution.”14 In 2001 Morocco suggested that it might grant the inhabitants of Western Sahara some type of autonomy within the state of Morocco. James Baker III, who was the Personal Representative of the U.N. Secretary General at the time, incorporated this idea into several proposals, the last being the “Peace Plan” under which Western Sahara would enjoy a period of autonomy after which a referendum would be held through which eligible voters would be able to choose whether to be incorporated into Morocco or establish an independent state. In May of 2003, the Secretary General publicly announced his support for Baker’s “Peace Plan,”15 and on July 31, 2003, the Security Council voted unanimously to “support strongly” what it described as “an optimum political solution on the basis of agreement between the two parties.”16
However, Morocco rejected that plan.17 In April of 2004, the Secretary General confirmed that “Morocco does not accept the Settlement Plan to which it had agreed for many years . . . and it also now does not accept essential elements of the Peace Plan (of Baker). It accepts nothing but negotiations about the autonomy of Western Sahara ‘in the framework of Moroccan sovereignty.’”18
Since then the Security Council has urged the parties to negotiate a political solution that would, nonetheless, permit the people of the territory to exercise their right to selfdetermination.19 However, Morocco has insisted that its autonomy proposal is the only option for Western Sahara,20 and has described the territory in official documents and legislation as its “Southern Province.” 21
Morocco also has encouraged large numbers of Moroccans to settle in the territory so that today they greatly outnumber the native Sahrawis. This effort was intensified after the 1991 ceasefire, and today it is estimated that of the 500,000 or so residents of Western Sahara, only 25% are native Sahrawis.22
Tensions have increased among the Sahrawis, particularly Sahrawi youth, who have become increasingly angry at the denial of their rights by Morocco and the inability of the international community to support their rights.
On November 13, 2020, Morocco evicted Sahrawi civilians who had blocked a Moroccan road that connects Western Sahara with Mauritania through a buffer zone. The Polisario considered the road and eviction a violation of the 1991 ceasefire and declared an end to the agreement. 23
Unless steps are taken immediately to address the situation, there is a chance that it will erupt into a full-scale war. A new special representative of the UN Secretary General has recently been appointed and has reconvened talks between the parties, but there is no indication of any progress in these talks.
1 Western Sahara, known as Spanish Sahara when it was a colony of Spain, is a territory no larger than the state of Colorado, situated between Morocco to the north, Mauritania to the south, and Algeria to the east. It is mostly desert and the ancestral home of nomadic people called the Sahrawi.
2 General Assembly Resolution 1514 (XV), December 14, 1960.
3 The report of this Mission is entitled “The Report of the Special Committee on the Situation With Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples,” UN Doc. A/100023/Add.5, Annex, at 26 (1975). (“The U.N. Mission Report”)
4 Advisory Opinion on Western Sahara (1975), ICJ Rep. 12 (“Western Sahara Case”). In the words of the Court: “The Court’s conclusion is that the material and information presented to it do no establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco . . . Thus the Court has not found ties of such a nature as might affect the application of 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 . . . .” (at 162) The Court’s response to Mauritania’s claim was essentially the same (at 49).
5 Two days after the Court’s opinion the King announced that there would be a massive march of 350,000 civilians from Morocco into Western Sahara, later called the “Green March,” to gain recognition of Morocco’s sovereignty. Letter from the Permanent Representative of Morocco to the U. N. addressed to the President of the Security Council, October 18, 1975. UN Doc. S/11852 (1975). It was clear that the ultimate purpose of the march was to put pressure on Spain to negotiate with Morocco and Mauritania before the General Assembly could conduct the referendum. See, R. Vance, Jr., Recognition as an Affirmative Step in the Decolonization Process: The Case of Western Sahara, 7 Yale J. World Pub. Ord. 45, 50 (19 80) “Vance”).
6 On November 14, the governments of Morocco, Mauritania and Spain issued a joint communiqué notifying the world of certain agreements, later dubbed the “Madrid Accords,” reached as a result of negotiations on the Western Sahara issue. Declaration of Principles on Western Sahara by Spain, Morocco and Mauritania, Annex II to U.N. Doc. S/11880, November 19, 1987, in Security Council Official Records, 30th Year, Supplement for October, November and December 1975, at 41.
7 A February 1976 report by the International Federation of Human Rights noted that soldiers “butchered hundreds and perhaps thousands of Sahrawis, including children and old people who refused to publicly acknowledge the king of Morocco” and that by that date 80 percent of the inhabitants of Laayoune had left.
8 T. Hodges, WESTERN SAHARA: THE ROOTS OF A DESERT WAR (Lawrence Hill & Co. 1983)(“Hodges”) at 232. When they were later strafed by Moroccan aircraft, killing or wounding many of them, Boumedienne, the President of Algeria, allowed them to set up camps in Tindouf, Hodges at 233. 8 Hodges at 233.
9 On August 11, 1988 the Secretary General of the U.N. and a representative of the President of the Organization of African Unity (OAU), now the African Union (AU), presented an outline of a plan to both parties, which was accepted by both parties on August 30, 1988.
10 S/21360/1990 (18 June 1990).
11 Id, at 5. This report confirmed their agreement that the future of the territory would be determined by a referendum conducted under the auspices of the United Nations and the Organization of African Unity (now the African Union) in which the indigenous population, defined as “all Sahrawis included on the Spanish census of 1974 eighteen years of age or older,” would be allowed to vote between independence and integration with Morocco. The terms of the Plan were further delineated in the next report of the Secretary General, S/22464/1991 (April 19, 1991), again confirming these details. However, after lobbying by Morocco, the Secretary General proposed broadening the criteria for voter eligibility to include certain Sahrawis who were not on the 1974 Spanish census, which criteria were finally accepted by the parties.
12 For a recent acknowledgment that Western Sahara remains a Non-Self-Governing Territory, see Special Committee on Decolonization 4th Meeting (AM), GA/COL/3159, June 6, 2007, paras. 6 and 8.
13 S. Zunes & J. Mundy, WESTERN SAHARA: WAR, NATIONALISM, AND CONFLICT IRRESOLUTION, (Syracuse U. Press, 2010) (“Zunes & Mundy”) pps. 211 et seq; also UN Doc. S/1999/1219, par. 9.
14 S/Res/2000/1309 (25 July 2000); S/RES/2000/1324 (30 October 2000). Nevertheless, the Security Council emphasized that any political solution would have to be “in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations” and indicated its willingness to consider “any approach which provides for self-determination.” S/RES./1429 (30 July 2002).
15 S/2003/565 (23 May 2003).
16 Press Release SC/7833, July 31, 2003.
17 As the Secretary General commented at the time: “It is difficult to envision a political solution that . . . provides for self-determination but that nevertheless precludes the possibility of independence as one of several ballot questions. This is particularly difficult to envision given . . . the stated commitment of Morocco to the settlement plan . . . over so many years;” S/2002/565 at 10.
18 Report of the Secretary-General on the Situation Concerning Western Sahara, UN Doc. S/2004/325. In mid-2007 Morocco submitted a formal autonomy proposal to the UN.
19 The Security Council adopted Resolution 1754, calling upon the parties:“[t]o enter into negotiations without preconditions in good faith, taking into account the developments of the last months, with a view to achieving a just, lasting and mutually acceptable political solution, which will provide for self-determination of the Western Sahara.” S/RES/1754, 30 April 2007
20 In a speech commemorating Throne Day, the King proclaimed: Morocco is . . . clear in terms of its fundamental convictions: the way to achieve the desired settlement can be none other than through Moroccan full sovereignty and within the framework of the autonomy initiative.” See, King Mohammed VI Speech on Throne Day, July 29, 2019.
21 In all official documents and legislation Western Sahara is listed as Morocco’s “Southern Province.” See, e.g., Article 21 of the Moroccan “Hydrocarbon Law.” In a speech to the nation on November 6, 2014, the 39th anniversary of the Green March, cited in moroccoworldnews.com, the King of Morocco clearly stated his position: “We say ‘No’ to the attempt to change the nature of this regional conflict and to present it as a decolonization issue. Morocco is in its Sahara [sic] and never was an occupying power or an administrative power. In fact, it exercises its sovereignty over its territory.”
22 U.S. State Department Report, “Human Rights Practices in Western Sahara,” 2015, at 2.
23 Human Right Watch Report: “Western Sahara: Morocco Cracks Down on Activists,” December 18, 2020.