Dr Sidi M. Omar
Frente POLISARIO Representative at the United Nations
The UN observes these days the Week of Solidarity with the Peoples of Non-Self-Governing Territories in accordance with General Assembly resolution 54/91 of 6 December 1999, by which the General Assembly decided to observe annually the Week of Solidarity with the Peoples of Non-Self-Governing Territories, beginning on 25 May. The General Assembly also affirmed once again that the existence of colonialism in any form or manifestation is incompatible with the UN Charter, the Declaration on the Granting of Independence to Colonial Countries and Peoples and the Universal Declaration of Human Rights.
On 14 December 1960, the General Assembly adopted resolution 1514 (XV) containing the Declaration on the Granting of Independence to Colonial Countries and Peoples in which it solemnly proclaimed the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations. To this end, the General Assembly declared a set of principles including the need for immediate steps to be taken to enable the peoples of Non-Self-Governing Territories to enjoy complete independence and freedom (OP 5). Western Sahara, of which parts are now under illegal occupation by the Kingdom of Morocco, remains one of the 17 Non-Self-Governing Territories since the inclusion of the Territory (known then as “the Spanish Sahara”) on the list of territories to which General Assembly resolution 1514 (XV) was applicable. The list was elaborated and adopted by the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples in 1963 and approved by the General Assembly in the same year. The inclusion of Western Sahara on the list of Non-Self-Governing Territories was an international recognition of the inalienable right of the Sahrawi people to self-determination and independence and the responsibility of the United Nations with respect to the Territory and its people. It also implied the need to end colonialism in the Territory in line with General Assembly resolution 1514 (XV), a process for which responsibility was entrusted to the then administering power, Spain, in cooperation with the United Nations in line with Chapter XI of the UN Charter. In this context, since the adoption of its resolution 2072 (XX), the General Assembly kept calling on Spain, as the administering power of Western Sahara, to take all necessary measures to decolonise the Territory.
Spain however did not fulfil its obligations as an administering power in Western Sahara nor its “sacred trust” regarding the Sahrawi people. Rather, it signed a tripartite agreement with Morocco and Mauritania on 14 November 1975. Spain also declared, on 26 February 1976, that it considered itself henceforth exempt from any responsibility of an international nature in connection with the administration of Western Sahara and then withdrew from the Territory. The fact remains, however, that both Madrid Agreement, which is null and void, and Spain’s declaration of exempting itself from its responsibility regarding Western Sahara have not altered or affected the legal status of Western Sahara as a Non-Self-Governing Territory. The UN General Assembly, which has exclusive competence on matters related to Non-Self-Governing Territories, has never taken any decision that officially absolves Spain of its responsibility regarding Western Sahara. Furthermore, the Under-Secretary-General for Legal Affairs and the UN Legal Counsel affirmed, in his legal opinion issued at the request of the Security Council on 29 January 2002, that “The Madrid Agreement did not transfer sovereignty over the territory, nor did it confer upon any of the signatories the status of an administering Power – a status which Spain alone could not have unilaterally transferred. The transfer of administrative authority over the territory to Morocco and Mauritania in 1975, did not affect the international status of Western Sahara as Non-Self-Governing Territory” (paragraph 6).
In view of the above, two fundamental facts stand out: first, the decolonisation of Western Sahara has not yet been completed and Spain is still the de jure administering power of the Territory as confirmed by the ruling of the Spanish National Court of 4 July 2014, which established that “Spain de jure, although not de facto, remains the Administering Power, and as such, until the end of the decolonisation period, it has the obligations set forth in articles 73 and 74 of the UN Charter” (paragraph d); second, Morocco remains an occupying power of parts of Western Sahara, as confirmed by the General Assembly in its resolutions 34/37 of 21 November 1979 and 35/19 of 11 November 1980, in which the General Assembly urged Morocco to terminate its occupation of Western Sahara.
In addition to the Articles of the UN Charter and General Assembly and Security Council resolutions related to self-determination, the advisory opinion of the International Court of Justice (ICJ) on Western Sahara of 1975 is a key reference for the legal foundation of the right to self-determination as an inalienable and peremptory right under international law. With regard to the issue of Western Sahara, it is worth noting that the ICJ affirmed, in its advisory opinion, two fundamental facts: first, Western Sahara was not a land belonging to no one (terra nullius) at the time of Spanish colonisation because it was inhabited by peoples having their own social and political organisation (paragraph 81) and it was in these peoples together that sovereignty over the Territory was invested; second, there was no tie of territorial sovereignty between the Territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity (paragraph 162). Thus, based on these two facts, the ICJ inferred its logical conclusion, which encapsulates its answer to the two questions that were presented to it, to the effect that “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 (paragraph 162).
The ruling of the ICJ, which is the principal judicial organ of the United Nations, has unambiguously laid down the two legal foundations on which the decolonisation of Western Sahara should proceed; first, sovereignty over Western Sahara is vested in the Sahrawi people; second, as a result, only the Sahrawi people have the right to decide, through the free and genuine expression of their will, the status of Western Sahara in accordance with General Assembly resolution 1514 (XV) and other resolutions relevant to decolonisation. It is worth noting that the ICJ affirmed that the expression of the will of the Sahrawi people must be free and genuine. This means that the expression must be carried out without any foreign interference of any kind and that it should be done directly by the Sahrawi people through the internationally established democratic processes.
As we observe these days the Week of Solidarity with the Peoples of the Non-Self-Governing Territories, we recall the speech delivered by the UN Secretary-General, Mr Antonio Guterres, at the opening of the organisational meeting of the UN Committee on Decolonisation (C-24) on 21 February 2019, when he said that “decolonisation is one of the most significant chapters of the Organisation’s history. But this story is still being written, as 17 Non-Self-Governing Territories remain”. The Sahrawi people are still waiting patiently and resolutely for the United Nations to accomplish its pending mission in Western Sahara by taking the necessary, immediate measures to enable our people to enjoy complete independence and freedom, so that Africa could close one of the most hideous and brutal chapters of the history of our continent.
26 May 2020