March 25, 2002
Published during the 58th Session of the Commission on Human Rights
The Commission should not allow the forfeiture of the territory's right to self-determination.
ON 6 April 2001, the Commission on Human Rights adopted resolution 2000/1 entitled 'The Question of Western Sahara'. Reaffirming the inalienable right of all peoples to self-determination, the resolution urged the Kingdom of Morocco and the Frente Popular para la Liberacion de Saguia el-Hamra y de Rio de Oro (Polisario) to cooperate in the implementation of the Settlement Plan agreed by the parties in 1997.
Events of the past year will mean that the resolution on Western Sahara this year will require redrafting.
The self-determination of peoples is a key principle upon which the United Nations was founded. Article 1(2) of the Charter provides this as one of the purposes of the United Nations, and it is reinforced as a human right in Article 1 of both International Covenants. The quest for self-determination was at the forefront of the United Nations' work in the 1960s with decolonisation, particularly in Africa.
Settlement plan & Morocco's Obstructionism
In 1960, the UN General Assembly adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples, which affirmed that 'all peoples enjoy the right of self-determination.'
As the departure of Spain from Western Sahara was followed by Moroccan occupation in 1975, the Sahrawi people have never enjoyed the self-determination promised to them by the Charter.
Since the 1960s, the Commission on Human Rights and the General Assembly have called for self-determination for Western Sahara. Following a prolonged armed conflict over the territory, in 1997 the United Nations brokered a ceasefire between Morocco and Polisario in Western Sahara.
The Settlement Plan provided for a referendum to be held in Western Sahara granting the people the choice of integration with Morocco or independence. The referendum was earlier meant to be held in January 1992. Moroccan obstructionism meant that it wasn't held, and now may never be.
In late 2001, the Personal Envoy of the Secretary General to Western Sahara, James Baker proposed the reversal of 25 years of UN policy and urged the Security Council to drop the idea of a referendum, at least in the short term. His 'third way', which was endorsed by Kofi Annan in his latest report on the issue to the Security Council (S/2002/178) envisages Western Saharan autonomy within the Kingdom of Morocco. The Draft Framework (S/2002/613) provides for the devolution of some powers to the people of Western Sahara with final status to be determined by a referendum five years later.
Unsurprisingly the plan was welcomed by Morocco, and outrightly rejected by Polisario and its traditional backer, Algeria. In effect, the Draft Framework recognises the Moroccan annexation of Western Sahara, and kills any real hope of self-determination for the Sahrawi people.
The status of Western Sahara was considered by the International Court of Justice in 1975. In an Advisory Opinion, the Court concluded that while some tribes in Western Sahara had historical ties to neighbouring Morocco and Mauritania, there were insufficient links to establish 'any tie of territorial sovereignty' between the territory of Western Sahara and the Kingdom of Morocco or Mauritania.
Moreover, it found no 'legal ties of such a nature as might affect the application of the principle of self-determination through the free and genuine expression of the will of the people of the territory.'
Four years after the Advisory Opinion, Mauritania withdrew from the southern portion of Western Sahara. Morocco simply occupied the south as well.
Moroccan and Polisario forces fought intermittently from 1975 until 1991, when a UN peacekeeping force, MINURSO was deployed to the region.
The ceasefire was predicated on the holding of a referendum on independence. The structure of the referendum was agreed at the time: the voter list would be based on an updated version of the Spanish census tabulated in 1974.
Voters lists
Voter identification however has provided an apparent obstacle to self-determination. MINURSO was charged with assessing the eligibility of voters, however disagreements about the formulae used have suspended voter identification on several occasions. The initial identification process was completed in December 1999, with a provisional list of 86,386 being published in early 2000. However, a total of 131,038 appeals have been lodged by individuals denied status as voters.
MINURSO's 230 personnel cannot possibly deal with an appeals process on this scale.
It is no secret that the reason for the delays is Morocco's insistence on stacking the voter lists with people who will vote for integration. In the face of an already ten-year delay in holding the referendum and the overwhelming administrative task of processing the appeals, James Baker suggested the Draft Framework.
The Moroccan delegate to the Fourth Committee (Special Political and Decolonization) of the General Assembly applauded the proposal in light of the impossibility of agreeing on appropriate voters. The impossibility is of Morocco's creation.
Vested Interests
Morocco fears that, in exercising their right to self-determination, the people of Western Sahara will opt for independence. It is loathe to let Western Sahara go, as are certain members of the international community. Since the Cold War, Morocco has played an important strategic role in a volatile region. France and the United States have both blocked efforts in the Security Council to sanction Morocco, fearing the loss of an ally - a pro-Western monarchy that has staked its political future on incorporating the 'southern provinces'. As they did with Australia's dealings in the Timor Gap, economics may also play a part.
Another reason to deny the people of Western Sahara self-determination is the exploitation of natural resources. Since the 1960s, exploration data by numerous oil companies has revealed the territory to be rich in oil.
Buoyed by the potential UN-approved integration of Western Sahara, in October 2001, the Moroccan authorities issued licenses to Total Elf Fina and Kerr McGee for the exploration of oil resources in the territorial waters of Western Sahara.
On 29 January this year, the Under Secretary General for Legal Affairs to the United Nations, Hans Corell wrote to the President of the Security Council, reaffirming that the question of Western Sahara is an issue of decolonisation.
The advice reiterates that Morocco does not have sovereignty over the territory and that such licences are invalid.
The mineral exploitation of Western Sahara is contrary to the principle of the right to self-determination. Paragraph 2 of Article 1 of the ICCPR emphasises that the right to self-determination includes the ability of peoples to 'dispose of their natural wealth and resources'.
In General Comment 12 of 13 March 1984 on the right to self-determination, the Human Rights Committee further emphasised the duty on all State Parties to take positive action to facilitate the realisation of this right.
Following the agreement on the Settlement Plan, the General Assembly also specifically resolved that 'the exploitation and plundering of colonial and non-governing territories by foreign economic interests, in violation of the relevant resolutions of the United Nations is a grave threat to the integrity and prosperity of those territories' (A/Res/46/64, 11 December 1991). The role of the international community in upholding these standards is clear.
Undeniable right
The poor state of human rights in Western Sahara is a creature of the denial of self-determination. As stressed by the Human Rights Committee in General Comment 12, 'the right to self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights' (paragraph 1).
The human rights abuses associated with the denial of self-determination have been well documented by Amnesty International and Human Rights Watch. Over the 1970s, hundreds of Sahrawis disappeared while struggling for self-determination. In 1991, over 300 were released after 16 years of incommunicado detention.
The Moroccan authorities have yet to conduct a public inquiry into the disappearances, although in July 2000, it did begin distributing preliminary compensation payments to some victims.
In the territory today, freedom of expression, peaceful assembly and association are severely restricted. Moreover, UNHCR estimates that some 165,000 Sahrawi people are living in refugee camps in the Algerian desert, where many of them have lived for 26 years. The international community must also be mindful of the lives of these people, most of whom are simply waiting for an opportunity to vote.
The human rights challenges in Western Sahara do not solely lie with the Moroccan authorities however. Polisario has repeatedly failed to uphold basic principles of international humanitarian law, especially in respect to the repatriation of prisoners-of-war. On 17 January 2002, 115 of the 1,477 Moroccan POWs were repatriated under the auspices of the International Committee of the Red Cross. While the gesture was welcomed by Kofi Annan, he has emphasised that the extent of the action is insufficient and long overdue, under both the ceasefire agreement and the Geneva Conventions.
The right to self-determination in international law is absolute. It need not mean independence for Western Sahara, but has to involve a decision on the people's behalf. The right cannot simply be put in the too hard' basket and traded away by a document such as the Draft Framework.
It is clear that voter registration in Western Sahara will continue to pose problems for proceeding with a referendum. However the token concession of a 'referendum five years following' the granting of some autonomy within Morocco, is meaningless without action against Morocco's intransigence on this issue. It would seem increasingly likely that the right to self-determination of the people of Western Sahara is going to be abandoned.
The international community of the 1960s would not have agreed to a political settlement with the then colonial powers, and would have accepted nothing short of decolonisation. By their very nature, rights are not subject to settlement. This Commission should not settle either.
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