New York, 27 June 2021

Excellencies,

Upon instructions from my Authorities, I have the honour to share the position of the Frente POLISARIO regarding the statement made recently by the ambassador of the occupying state of Morocco before the Special Committee on Decolonisation (C-24) in which he resorted, as usual, to distortions and downright lies concerning the internationally recognised legal nature of the question of Western Sahara.

  1. Madrid Agreement is null and void, and it did not transfer sovereignty over Western Sahara to any third party

The ambassador of the occupying state of Morocco claimed that “since the signing of the Madrid Agreement on 14 November 1975, the principle of self-determination as advocated by Chapter XI of the UN Charter, has definitely ceased to apply to Western Sahara”. This is a preposterous and baseless claim.

First, the Madrid Agreement (“Madrid Declaration of Principles”) signed between Spain, Mauritania, and Morocco on 14 November 1975 is null and void because it violated an imperative norm (jus cogens) of general international law, namely colonial peoples’ right to self-determination.

The Agreement also violated the landmark Advisory Opinion of the International Court of Justice (ICJ), the principal judicial organ of the United Nations, issued on 16 October 1975, which unequivocally ruled 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” (para. 162).

The Legal Opinion issued by the UN Under-Secretary-General for Legal Affairs, the Legal Counsel, on 29 January 2002, at the request of the Security Council is also abundantly clear on this issue. The UN Legal Counsel established 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” (para. 6).

Second, the General Assembly has never approved Madrid Agreement or considered it to have affected the status of Western Sahara in line with General Assembly Resolution 742 (VIII) of 27 November 1953 and relevant resolutions. The General Assembly and its subsidiary bodies have therefore continued to address the question of Western Sahara within the scope of Chapter XI of the UN Charter. In this regard, they have been reaffirming the inalienable right of the people of Western Sahara to self-determination in accordance with General Assembly Resolution 1514 (XV) of 14 December 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples. 

Moreover, and beyond the legal farce displayed by the ambassador of the occupying state of Morocco, the mere reference to the so-called Madrid Agreement exposes his country’s greed for more expansion to the extent that the authorities of this state were comfortable to share a territory they claimed theirs and to divide a population they preposterously called part of their “ummah”.

  1. Western Sahara is a Non-Self-Governing Territory to be decolonised based on the exercise by the Sahrawi people of their inalienable right to self-determination and independence

The Special Committee on Decolonisation (C-24) included Western Sahara on the list ofNon-Self­ Governing Territories (NSGTs) in its report (A/5446/Rev.l) of 6 December 1963, which was approved by the General Assembly in its Resolution 1956 (XVIII) of 11 December 1963.

In its Advisory Opinion on Western Sahara of 16 October 1975, the ICJ stressed that the provisions of General Assembly Resolution 1514 (XV) “in particular paragraph 2, thus confirm and emphasise that the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned” (para. 55).

General Assembly Resolutions (Res. 742 (VIII) of 1953 and 1514 (XV) and 1541 (XV) of 1960, among others) entrust the General Assembly with the duty of validating the application of the right to self-determination and deciding when a Non-Self-Governing Territory has exercised self­ determination based on the opinion of its people, freely expressed by informed and democratic processes, as to the status or change in status of the Territory.

Therefore, as long as the General Assembly has not validated “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” in line with the ICJ Advisory Opinion of 1975 (para. 162) and relevant General Assembly resolutions, Western Sahara remains in every practical sense a Non-Self-Governing Territory. It is worth noting that the condition of Western Sahara being both a Non-Self-Governing Territory and an Occupied Territory is compatible with international law and practice.

  1. Western Sahara is a different and distinct Territory from the occupying state of Morocco

The ambassador of the occupying state of Morocco claimed that the parameters laid down by the founding resolutions of self-determination, namely 1514 and 1541 (“notably that the territory must be geographically separate and ethnically or culturally distinct from the country that administers it”) are not applicable to Western Sahara. He presented some erratic and totally misleading accounts to show that Western Sahara is not different and distinct geographically and ethnically from the occupying state of Morocco.

Principle IV of General Assembly Resolution 1541 (XV) of 15 December 1960 provides 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”. Moreover, General Assembly Resolution 2625 (XXV) of24 October 1970 states that “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”.

General Assembly resolutions therefore referred to the condition and status of Colonies or Non­ Self-Governing Territories (NSGTs) vis-a-vis the countries that administered them. In the case of Western Sahara, it was Spain, the UN recognised Administering Power, that administered the Territory, which had a status separate and distinct from metropolitan Spain.

With regard to the status of Morocco in relation to Western Sahara, the General Assembly has deeply deplored “the continued occupation of Western Sahara by Morocco” in its Resolutions 34/37 of 1979 and 35/19 of 1980, among others. The Legal Opinion of the UN Under-Secretary-General for

Legal Affairs, the Legal Counsel, of 29 January 2002, reaffirmed that Morocco is not an administering power of Western Sahara (para. 7). Moreover, in its judgement (Case C-104/16 P) of 21 December 2016, the Court of Justice of the European Union (CJEU) recognised “the separate and distinct status accorded to the territory of Western Sahara by virtue of the principle of self-determination, in relation to that of any State, including the Kingdom of Morocco” (para. 92).

In view of the above, Morocco is simply an occupying power of Western Sahara in accordance with General Assembly Resolutions 34/37 of 1979 and 35/19 of 1980, among others. Therefore, the invocation by the ambassador of the occupying state of Morocco of the provisions of General Assembly Resolutions 1514 (XV) and 1541 (XV) in this case is out of context and misleading.

After all, geographical contiguity, ethnic and religious similarities between a given country and its neighbours do not justify the forceful occupation by that country of any of its neighbours and would put in jeopardy the whole balance and foundations upon which our contemporary world rests. If anything, the arguments made by the ambassador of the occupying state of Morocco clearly reflect the colonial appetite and expansionism of his country that opposed the decolonisation of Mauritania in the 1960s and refused to recognise it as a free nation for almost a decade after its independence. Worst still, the occupying state of Morocco, to this day, arrogates to itself some “divine rights” on parts of its neighbours’ territories against all principles of good neighbourhood and international law.

  1. The invocation of Article 12 of the UN Charter in the case of Western Sahara is disingenuous and misleading

The ambassador of the occupying state of Morocco misleadingly invoked article 12 (1) of the UN Charter to argue that “no reason would justify keeping the issue of Western Sahara on the agenda of the C-24”.

As outlined above, the General Assembly and its subsidiary bodies have been addressing Western Sahara as a decolonisation issue since the Territory was included on the UN list of Non-Self­ Governing Territories (NSGTs) in December 1963. Therefore, in its first resolution on Western Sahara (Resolution 377 (1975) of 22 October 1975), the Security Council addressed the matter “without prejudice to any action which the General Assembly might take under the terms of its resolution 3292 (XXIX) of 13 December 1974″ (OP 1).

As a result of the efforts deployed jointly by the UN and the Organisation of the African Unity (OAU) to settle the question of Western Sahara, the matter was again brought before the Security Council in line with General Assembly Resolution 40/50 of 2 December 1985. After the acceptance by the Frente POLISARIO and Morocco of the UN-OAU Settlement Plan in August 1988, on 29 April 1991, the Security Council established, under its authority, the United Nations Mission for the Referendum in Western Sahara (MINURSO) to implement the plan and hold a referendum on self-determination for the people of Western Sahara.

In his report (A/75/367) of 29 September 2020, the Secretary-General noted that “the Security Council addresses Western Sahara as a matter of peace and security. The Special Political and Decolonisation Committee (Fourth Committee) of the General Assembly and the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples address it as a Non-Self­ Governing Territory and an issue of decolonisation” (para. 2).

The fact that the question of Western Sahara has been addressed concurrently by both the General Assembly and the Security Council is consistent with the UN Charter and legally-based established practice.

The UN Legal Opinion on the “Practice of the United Nations as regards the consideration of the same questions by the Security Council and the General Assembly”, dated 10 September 1964, states that, whether the questions were originally submitted to the General Assembly or the Security Council, concurrent consideration by the two organs of those questions took place and, in most cases, both organs adopted substantive resolutions without reference to Article 12, paragraph 1, of the Charter (para. 14; pp. 233). The cases included, for instance, the situation in the Congo (1960-1961), the situation in Angola (1961-1962), the Apartheid question (1960-1963), the question of Southern Rhodesia (1962-1963), among others. Recent cases include Palestine and Afghanistan.

In line with legally-based established practice, the question of Western Sahara falls within the category of items submitted to the General Assembly and later considered by the Security Council such as the case of Palestine, which continues to be on the agenda of both the General Assembly and the Security Council. The invocation of article 12 (1) of the UN Charter by the ambassador of the occupying state of Morocco is therefore disingenuous and misleading. It also shows his lack of any convincing evidence to support his claim which makes him resort to tendentious interpretations of the UN Charter and established practice.

Conclusions

  • Since the inclusion of the Territory on the UN list of Non-Self-Governing Territories in December 1963, the Special Political and Decolonisation Committee (Fourth Committee) of the General Assembly and the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (C-24) have been addressing Western Sahara as a Non-Self-Governing Territory and an issue of
  • The fact that the question of Western Sahara has been addressed concurrently by the General Assembly and its subsidiary bodies and the Security Council is consistent with the UN Charter and legally-based established
  • In view of the facts outlined above, the claims made recently by the ambassador of the occupying state of Morocco before the Special Committee on Decolonisation (C-24) are not only baseless. They also show the extent to which he could go in using distortions and downright lies in his attempt to mislead Member States of the United Nations about the internationally recognised legal nature of the question of Western

Please accept, Excellencies, the assurances of my highest consideration.

Dr Sidi M. Omar 

Ambassador

Representative of the Frente POLISARIO at the UN

Frente POLISARIO Letter to Permanent Missions on C-24 Session 27-06-21 by porunsaharalibre.org on Scribd

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