Western Sahara and the United Nations norms on self-determination and aggression

INTRODUCTION

Roger S. Clark makes a meticulous investigation into the norms of self-determination as defined by the United Nation’s 1960 Resolution 1541 (XV). Here we have selected extracts from his article that convey the complexities which international jurists face in determining the meaning and application of international law. Clark is one of many respected international jurists who examine the case of Western Sahara to challenge Morocco’s claim to the territory and show how Western Sahara’s rightful decolonisation process has been frozen contrary to the conventions of international law.

THE NORMS ON SELF-DETERMINATION

Resolution 1541 (XV) notes that ‘[t]he authors of the Charter of the United Nations had in mind that Chapter XI [which includes Article 73"> should be applicable to territories which were then known to be of the colonial type.’ It asserts that ‘prima facie there is an obligation to transmit information in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it.’ It continues:

‘Once it has been established that such a prima facie case of geographical and ethnical or cultural distinctness of a territory exists, other elements may then be brought into consideration. These additional elements may be, inter alia, of an administrative, political, juridical, economic or historical nature. If they affect the relationship between the metropolitan state and the territory concerned in a manner which arbitrarily places the latter in a position or status of subordination, they support the presumption that there is an obligation to transmit information under Article 73 e of the Charter.’

In what is usually regarded as a more radical statement of principle, adopted also in 1960, the general assembly asserted in its resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries and Peoples, that ‘[i">mmediate steps shall be taken, in trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.’

Resolution 1514 (XV) apparently proceeded on the basis that ‘everyone knows’ a colony when they see it. Western Sahara certainly looked like one. Moreover, if one applied the more moderate approach of Resolution 1541 (XV), Western Sahara rather plainly fit both the prima facie case and also exhibited the ‘additional elements’ placing it ‘in a position or status of subordination’. Spain, unlike Portugal, conceded the point and the General Assembly included Western Sahara in its list of Spanish non-self-governing territories. It is noteworthy that in its first resolution dealing with the territory, and in subsequent resolutions, the Security Council also saw fit to refer to the decolonization norms. When first seized of Western Sahara in 1975, the council reaffirmed ‘the terms of General Assembly Resolution 1514 (XV) of 14 December 1960 and all other relevant General Assembly resolutions on the Territory’.

Resolution 1541 (XV) spoke also to the ways in which the colonial status might be terminated by the territory reaching a ‘full measure of self government’. This could occur, in terms of the Resolution by emergence as a sovereign independent state, by free association with an independent state or by integration with an independent state. The option of integration is the subject of two fairly detailed provisions aimed at ensuring that the choice to that effect is genuine and on a basis of equality. Principle VIII insists that integration ‘should be on the basis of complete equality between the peoples of the erstwhile Non-Self-Governing Territory and those of the independent country with which it is integrated.’
Principle IX adds: ‘Integration should have come about in the following circumstances:

a. The integrating territory should have attained an advanced stage of self-government with free political institutions, so that its peoples would have the capacity to make a responsible choice through informed and democratic processes;

b. The integration should be the result of the freely expressed wishes of the Territory’s peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on adult suffrage. The United Nations could, when it deems it necessary, supervise the process.’

The attempt to carry out an appropriate referendum for Western Sahara under United Nations auspices should be seen in this light.

Underscoring the right to self-determination of colonial territories, including independence if that is what its people desires, the general assembly’s Declaration on Friendly Relations and Cooperation insists that the territories are separate international legal persons:
’The territory of a colony or other Non-Self-Governing-Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.’

The right of the people of Western Sahara to decide upon their own destiny has historically encountered two major obstacles. The first involved Spain’s efforts to divide the territory up between Morocco and Mauritania, rather than empowering the people to decide their future (the so-called Madrid Agreement of 14 November 1975). The second was the invasion, both en masse and militarily, of the territory by Morocco and Mauritania, continued by Morocco after Mauritania’s concession of defeat. Morocco, as I understand it, currently occupies some 80 per cent of the territory.

Spain’s attempted division of the spoils requires only a brief comment or two. In the first place, Chapter XI of the United Nations Charter, the Declaration Regarding Non-Self-Governing Territories, insists that administering powers ‘recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories.’ Among the corollaries of this general principle that are listed in the Charter is the obligation ‘to develop self-government to take due account of the political aspirations of the peoples....’ It is difficult to see how the holder of a sacred trust along these lines can fulfil the trust by dividing up the national territory among others! Moreover, bearing in mind the distinct legal personality of the territory, someone else can hardly give it away. It is rather an obvious case of res inter alios acta’

The Moroccan invasions were an obvious breach of the United Nations principles on self-determination. Consider for example this statement in the Declaration on Friendly Principles and Cooperation: ‘Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle....’ Morocco and Mauritania sought to avoid the application of resolutions 1514 and 1541 by arguing that there were legal ties between them and Western Sahara in the period before Spanish colonization of the area that precluded the application of an option of independence. In its advisory opinion on this, the International Court of Justice emphasized that ‘General Assembly resolution 1514 (XV) provided the basis for the process of decolonization which has resulted since 1960 in the creation of many States which are today Members of the United Nations. It is complemented in certain of its aspects by General Assembly resolution 1541 (XV), which has been invoked in the present proceedings.’ The court places great emphasis on the right of free choice of destiny but also concedes that in some cases independence was not an option:

‘The validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the general assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a ‘people’ entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances.’

It is clear from the context that one of the ‘certain cases’ that the court had in mind was the coastal enclave of Spanish Ifni, a territory that the General Assembly had treated differently from Western Sahara from the early days of consideration of the item, namely between 1966 and Ifni’s retrocession to Morocco in 1969. Ifni was a clear-cut acquisition from Morocco during the colonial period, in what we might now characterize as an unequal treaty. As the court points out, in 1966 Spain said in the Committee of 24 that it favoured decolonization of Western Sahara through the exercise of the right to self-determination of the population. The court describes this as receiving at the time the ‘support of Mauritania and the assent of Morocco’. As to Ifni, Spain had suggested establishing contact with Morocco as a preliminary step. Morocco suggested then, as later, that the decolonization of Ifni should be brought into line with Paragraph 6 of Resolution 1514 (XV). That paragraph is both the bastion of those defending against efforts at secession and the lifeline of those who advance irredentist claims on their neighbours. It was to be a significant part of Morocco’s later arguments to acquire Western Sahara. Its application there, given the historical differences in the relationships between those territories and the state of Morocco, is of a different order. Ifni passed by treaty from Morocco to Spain; Western Sahara passed by treaty from the Saharawi groups to Spain. The Assembly’s resolutions over the next couple of years reflected this different approach to the two territories, which seems to have been widely accepted. Rather blandly, the court comments that: ‘Since 1969 Ifni, having been decolonized by transfer to Morocco, has no longer appeared in the resolutions of the Assembly.’ It is against this background that the court’s treatment of the legal ties between Western Sahara on the one hand and Morocco and Mauritania on the other has to be understood.

The court found ultimately that, at the time of Spanish colonization, there were ‘legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara’(emphasis added). There were also ‘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.’ Nonetheless, the court’s holding that these did not amount to the kind of rights that affected the application of the right to an exercise of self-determination was emphatic:

‘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 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...’

An aspect of self-determination is sovereignty over natural resources. In November 2001, the members of the security council requested the opinion of the United Nations legal counsel on ‘the legality in the context of international law, including relevant resolutions of the security council and the general assembly of the United Nations, and agreements concerning Western Sahara of actions taken by the Moroccan authorities consisting in the offering and signing of contracts with foreign companies for the exploration of mineral resources in Western Sahara.’ This led the legal counsel into considering the status of Western Sahara and the status of Morocco in relation to it. It caused him also to analyze the principles of international law governing mineral resource activities in non-self-governing territories. The legal counsel was at pains to insist that the non-self-governing status of Western Sahara had continued notwithstanding the Madrid Agreement of 1975, Spain’s 26 February 1976 announcement that it had terminated its presence, and the withdrawal of Mauritania in August of 1979. He commented coyly that, since 1979, ‘Morocco has administered the Territory of Western Sahara alone. Morocco, however, is not listed as the administering Power of the Territory in the United Nations list of Non-Self-Governing Territories, and has, therefore, not transmitted information on the Territory in accordance with Article 73 e of the Charter of the United Nations.’ Given these considerations he thought it ‘appropriate for the purposes of the present analysis to have regard to the principles applicable to the powers and responsibilities of an administering Power in matters of mineral resource activities in such a Territory.’ In considering this, he examined in particular recent state practice and that of the general assembly addressing the question whether the principle of permanent sovereignty prohibits any activities related to natural resources undertaken in a non-self-governing territory or only those which are undertaken in disregard of the needs, interests and benefits of the people of that territory. He came to the conclusion that the latter is the case:

‘The recent State practice, though limited, is illustrative of an opinio juris on the part of both administering Powers and third States: where resource exploitation activities are conducted in Non-Self-Governing Territories for the benefit of the peoples of those Territories, on their behalf or in consultation with their representatives, they are considered compatible with the Charter obligations of the administering Power and in conformity with the General Assembly resolutions and the principle of ‘permanent sovereignty over natural resources’ enshrined therein.’

His ultimate conclusion was of small comfort to Morocco and its contractual partners: ‘while the specific contracts which are the subject of the Security Council’s request are not in themselves illegal, if further exploration and exploitation activities were to proceed in disregard of the interests and wishes of the people of Western Sahara, they would be in violation of the principles of international law applicable to mineral resource activities in Non-Self-Governing Territories.’

THE NORMS ON AGGRESSION

One might have thought that the Moroccan invasions were equally a breach of the charter provisions concerning the use of force, notably the prohibition on the use of force in Article 2, paragraph 4, and the provisions of Chapter VII concerning threats to the peace, breaches of the peace and acts of aggression. It is particularly telling to examine those actions against the General Assembly’s 1974 Definition of Aggression, which was intended as a definitive interpretation of the meaning of aggression within the meaning of the Charter. It is drafted in the form of a recommendation on the factors that the Security Council should take into account in determining the existence of an act of aggression for its purposes. It also has wider implications and it provides a key element in efforts to draft a provision concerning aggression for the purposes of the Rome Statute of the International Criminal Court.

The structure of resolution 3314 is somewhat similar to that of resolution 1541. Article 2 is a presumption: the first use of armed force by a state in contravention of the Charter shall constitute prima facie evidence of an act of aggression. The Security Council may, however, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances. The only possible ‘relevant circumstance’ in the present context is that Morocco was justified in ‘taking back’ something that belonged to it in the pre-colonial era. As we have seen, that argument appeared to be closed to Morocco after the Advisory Proceedings in the International Court of Justice. But that did not deter it from making the argument and emphasizing the ‘ties’ that had preceded the colonial period. Article 3 of the 1974 Resolution reinforces Article 2 by setting out a list of ‘acts’ that ‘shall, subject to and in accordance with the provisions of Article 2, qualify as an act of aggression.’ Most relevant is paragraph (a):

‘The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof.’

It is hard to escape the implications of this definition for Morocco’s actions. The political nature of the choices in which the security council engages in dealing with particular cases is perhaps underscored by the failure of the security council to condemn this breach of the charter and invoke the sanctions of Chapter VII of the Charter. The Council has, rather, consistently sought to characterize the matter as one involving a dispute and thus subject to Chapter VI’s dispute settlement mechanisms. It has thus also failed to address the application of the Fourth Geneva Convention of 1949. In particular, the population movements of Moroccans into the occupied territory should be measured against Article 49’s assertion that, ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’

THE NORMS AND THIRD STATES

A further aspect of the matter that requires mention is the attitude of third states. President Thabo Mbeki of South Africa expressed his attitude on it concisely in a letter to King Mohamed VI of Morocco explaining that he was making operational a long-standing policy to give diplomatic recognition to the Saharawi Arab Democratic Republic (SADR). Referring to the Moroccan statement that ‘the final nature of the autonomy solution is not negotiable,’ the president insisted that ‘[t]he avoidable cul-de-sac caused by the positions advanced by the Government of Morocco has created the situation that any further delay on our part to recognise SADR will inevitably translate into an abandonment of our support of the right of the people of Western Sahara to self-determination.’

He continued:‘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 own 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.’

A version of the ‘accessory’ issue is expressed in the General Assembly’s Definition of Aggression, article 5, paragraph 3, which insists that ‘No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.’ I have argued in discussing the situation in East Timor that this provision in the Definition of Aggression and similar provisions in other instruments represent an international customary law obligation on third states. Since I wrote on the subject, the International Law Commission has completed its Articles on State Responsibility. While the Commission abandoned the position taken in its earlier drafts that there were cases of substantial violations of the obligations of states that it was appropriate to characterise as ‘criminal’, the commission retained a Chapter (comprising Articles 40 and 41) in its Articles dealing with ‘Serious breaches of obligations under peremptory norms of general international law.’ There is no doubt that the norms dealing with self-determination and aggression fit this category, and the express provisions of the Articles support the argument that I made in respect of East Timor and its application to Western Sahara. Article 41 speaks to ‘Particular consequences of a serious breach of an obligation under this chapter.’

Paragraph 1 asserts that States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40. Paragraph 2 insists that no state shall recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation. It will be noticed that the duty of non-recognition is one that goes beyond the kinds of active complicity invoked by the words ‘aid or assistance’ and rejects passive assistance by acquiescence. The failure of political will represented by permitting Morocco to remain in place represents a failure to give effect to the requirement of Article 41 of the Articles on State Responsibility.

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