27 SEPTEMBER 2000 


Western Sahara: International Law and Political Perspectives

By Werner Ruf, professor of International Relations, University of Kassel, Germany.

Since 1965 the General Assembly of the United Nations has annually appealed to Spain to conform to its resolution 1514 (1960) and to organize a referendum on the political future of its colony. Confronted with the Moroccan claims over the territory the UN asked the International Court of Justice (ICJ) for an Advisory Opinion. On October 15th the ICJ refuted the Moroccan claims. In spite of this clarification Spain concluded on November 14 the tripartite agreement with Morocco and Mauritania in which it transferred the sovereignty over the territory to these two states. The two countries invaded the territory and annexed it. When, in 1978, Mauritania retreated its troops from the territory and concluded a peace treaty with the Democratic Arab Sahrawi Republic which was proclaimed by the Polisario-Front on February 27, 1976, Morocco invaded and annexed the formerly Mauritanian part in clear violation of International Law - and even of the problematic tripartite agreement. The General Assembly resolution 3437 (1970) denounced "the extension of Moroccan occupation".

In spite of the light contradictions in the resolutions 3453 A and 3453 B (December 10, 1975) of the UN-General Assembly, the UN insisted upon the "unalienable right of self-determination ... which is to be organized on the basis of a free referendum under the auspices of the United Nations". Hereby, as well as by the previous acts (Advisory Opinion of the ICJ, UN Security Council Resolution 380 (Nov. 6, 1975) calling upon Morocco to retreat the participants of the "Green March", the United Nations have taken over full responsibility for the solution of the conflict according to the principles of international law and on the basis of their own resolutions. However, it took almost sixteen years until April 19, 1991 when the Security Council passed resolution 690 which contained a detailed program for the organization of a free and just referendum and the deployment of MINURSO. Since that time the problem of identification of the persons entitled to vote is blocking the peace process, because, again and again, Morocco has tried to introduce new groups of voters, far beyond the findings of the identification committee of the UN.

In September 1997 a basic agreement concerning the identification mission seemed to be reached on the basis of the negotiations mediated between both sides by James Baker III, the Personal Envoy of the General Secretary of the United Nations. According to the report of the General Secretary of May 31, 2000 (S/2000/131), by the end of 1999, Morocco had presented some 139.000 appeals against the findings of the identification committee.

The decisive new element in this report as well as in the last report of the Secretary General (S/2000/683 of July 12, 2000), however, is the proposal to the two parties to "negotiate a political solution" of the conflict, a proposal which has been taken up in the latest resolution of the Security Council of July 25, 2000 (S/RES/1301) where it "decides to extend the mandate of MINURSO until 31 October 2000 with the expectation that the two parties will ... try to agree upon a mutually acceptable solution to their dispute over Western Sahara."

What does this mean? Should the right for self-determination of a people, one of the basic elements of the Charter of the United Nations and of International Law, after more than 25 years, be handed over to the decisions of two parties who have no legitimacy stemming from a freely expressed mandate of the concerned population? Does the procedure envisaged by the Security Council mean that the United Nations abandon the very substance of the General Assembly's fundamental Resolution 1514 (1960) granting to the formerly colonized people the right of self-determination? Can one imagine that the United Nations which, together with the OAU, have been responsible for that conflict throughout a quarter of a century, are escaping their own fundamental responsibility?

What about the Advisory Opinion of the ICJ? Aren't the Security Council resolutions 380 and 690 binding &endash; for the Security Council as well?

This abandoning of their very responsibility by the United Nations is not only a blow against the principles of International Law, it is a dangerous blow to the United Nations themselves when they cede to third parties a question of highest importance, threatening international peace and security. Is this a precedent that such matters, henceforth, will be in some sense privatized, handed over to the conflicting parties themselves? The United Nations and its Security Council are undermining the Charter and the standards of International Law, and creating a dangerous precedent for the role of the UN in future tasks of conflict resolution.

It seems to be unbelievable that the Secretary General points &endash; rightly &endash; to the fact that there is no implementation plan for resolution 690. But this cannot be a reason to abandon the peace plan and its main objective, the holding of a free and fair referendum. The absence of an implementation plan must be a reason to establish such a plan! What has happened in Eastern Timor underlines emphatically the necessity of such a plan in order to make the decisions of the United Nations efficient &endash; and credible.

And what will be the political consequences of the United Nations escaping from their responsibility for International Peace and Security? What will happen to the 155 000 refugees in the Tindouf camps? The risk of resumption of hostilities will be high, the consequences for peace and stability in the entire region are unpredictable. It is hard to believe that the United Nations themselves could further the restoration of anarchy in International Relations. In the case of Western Sahara, the credibility of the United Nations is at stake.

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