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The European Union Approach Towards Western Sahara

by Marco Balboni (Volume editor) Giuliana Laschi (Volume editor)
Edited Collection 322 Pages
Series: Euroclio, Volume 98

Summary

In the framework of the so-called Barcelona process, the European Union concluded several bilateral agreements with Morocco aimed to deepen their economic integration. The 2000 Association agreement European Union–Morocco is the general legal framework for the development of relationships among the two parties. In this context, the recent Agreement on reciprocal liberalisation measures on agricultural products and fishery products, entered in force in 2012, and the Fisheries Partnership Agreement, issued in 2013, were established. They reiterate and update former agreements. No one of them expressly excludes the territory of Western Sahara from the scope of application, in contrast with other similar agreements negotiated with other countries, such as the Free trade pact between Morocco and the United States of America. The non-exclusion of the territory of Western Sahara raises several concerns on the compliance of these agreements with International Law, not only in relation to the principle of self-determination of peoples but also with the principle of sovereignty of natural resources, the prohibition of exploitation of resources of a territory under occupation, the obligation to not recognise situations arisen in an illegal way, the prohibition to negotiate agreement with an occupying country once the process of decolonisation has begun.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author(s)/editor(s)
  • About the book
  • This eBook can be cited
  • Table of Contents
  • Introduction (Marco Balboni / Giuliana Laschi)
  • Les origines de la “question du Sahara Occidental”: enjeux historiques, défis politiques (Francesco Correale)
  • The Principle, the Right of Self-determination and the People of Western Sahara (Carlos Ruiz Miguel)
  • Fish before Peace. The EU’s Controversial Fisheries in Occupied Western Sahara (Erik Hagen)
  • The Principle of Sovereignty of Natural Resources and its Consequences (Hans Corell)
  • Legal Aspects of the European Union’s Approach towards Western Sahara (Ricardo Passos)
  • The 2013 Fisheries Protocol between the EU and Morocco: Fishing ‘too South’ Continues… (Enrico Milano)
  • Appendix
  • Documents
  • United Nations
  • European Union
  • African Union
  • United States
  • Non-Governmental Associations
  • Case-Law
  • European Union
  • United Kingdom
  • Biographical notes
  • Series index

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Introduction

Marco BALBONI & Giuliana LASCHI

University of Bologna1

Colonialism left an indelible mark on Africa and the Sahrawi people are one of the many groups who are still reckoning with the inheritance left them by Europeans. The Western Sahara was subjected to more than a century of illegal occupation firstly with Spanish colonisation and subsequently under Moroccan occupation. After winning their independence from Spain the Sahrawi people fought a resistance war against Moroccan occupation until the United Nations negotiated a ceasefire in exchange for a self-determination referendum. Morocco has never allowed this referendum to take place, however, and has consistently blocked UN mediation efforts2.

The Sahrawi people are the victims of rushed decolonisation and after the Spanish departed they were obliged to abandon the land they had lived on for centuries. Immediately after the withdrawal of the Spanish colonial occupiers in 1976 Moroccan troops from the north and Mauritanian soldiers from the south invaded the Western Sahara and the Sahrawi people were forced into refugee camps on Algerian territory. Morocco has continued to illegally occupy the territory and the Sahrawi have been a divided people ever since. Approximately 70% of them live in occupied areas and 30% in refugee camps. They have been a people in exile for forty years and have never succeeded in exercising their right to self-determination. The crisis in the Western Sahara is emblematic of the frequent ineffectiveness of the international community and its principal bodies.

For more than forty years, then, the Western Sahara has been the site of acute international crisis weighed down by the interests of the great ← 11 | 12 → Western powers who, for economic, strategic, security and immigration containment reasons, have consistently put a firm partnership with Morocco before self-determination for the Sahrawi people3. On the other hand, whilst capable of powerful resistance to occupation, the Sahrawi have shown themselves to be peaceful, preferring non-violent, international mediation to armed struggle. Their pacifism, respect for UN resolutions and efforts not only to survive in and from the Algerian desert but also to create a functional and evolved society are not such as to prompt fears of destabilisation and thus neither governments nor the international media have taken any interest in this serious unresolved international crisis.

The European Union and the UN feed these refugees in their Saharan camps but at the same time they have signed treaties with Morocco and, above all, a fishing convention which encompasses the Western Sahara’s territorial waters thereby indirectly and illegally recognising Moroccan sovereignty over the occupied territories. Member states continue to exploit profitable business opportunities with Morocco and the press keep quiet, evidently considering information on a crisis which has been quite literally kept in deafening silence as of no public interest.

The Western Sahara crisis, then, is one of the international community’s key failures. A solution has been postponed for decades in a resounding media silence paralleled by scholarly disinterest. The volume we are introducing here is intended to supply an academic basis to an analysis of the crisis in chapters which deal with various aspects of the matter written by scholars, experts and also the main players in the international action designed to manage the crisis. The book attempts to fill the void in academic work and is thus designed as a reference tool on the Western Sahara question. It is made up of an analytical section together with an appendix which lists the main documents relating to this international dispute.

Africa’s last colony

Francesco Correale’s chapter analyses the history of the crisis in depth and is our reference for thorough information. In this introduction our objective is to present an overview of the various stages in the international ← 12 | 13 → crisis analysed here and to put it in context in the international academic sphere4.

In the pre-colonial era the geographical area of modern day Western Sahara, which lies directly along the Atlantic Ocean on one side and the vast Sahara desert on the other, fell within the orbit of Islamic civilisation and culture and was a trading crossroads. As a result of migratory fluidity of the people who inhabited the area it had no well-defined borders or social immobility which was a colonial imposition and constitutes one of the gravest attempts to cancel out African history. In the 7th century Sahrawi society underwent a first migration of Muslim peoples from the Arabic peninsula and then a second Arab migration in the 12th century. These events gradually Islamicised the Maghreb, a process which was then consolidated by the purely trading activities of the first Islamicised Berbers. Its crossroads position on the trading routes made the Western Sahara attractive to the first Europeans to arrive on its coast in the 15th century where the first Spanish settlement was set up in 1478 though it was only from 1881 that Spanish occupation took root. With a royal decree of 1884 the Spanish government set up a protectorate in the area between Cap Blanc and Cape Bojador on the basis of pacts with the chiefs of the independent tribes living on this part of the coast. The Spanish colonisation of the Western Sahara was officially recognised by the European powers at the Berlin Africa Conference (1884-85) and thus in 1885 Spain declared its protectorate over the region. True exploration and then occupation of the area began only at the end of the 1940s under the Franco dictatorship whilst previously the mother country’s main interest had been in the Atlantic coast’s prolific fishing. In fact Spain limited its initial settlements to the coastal areas. It was the discovery of phosphates in Bou-Craa (1949-50) which prompted further Spanish intervention in the Sahara and gave the region its exceptional economic value.

When, in 1956, the French government brought its protectorate in Morocco to an end the latter laid claim to the Sahara and Mauritania territories on the basis of the so-called “Greater Morocco” line of thought. In the same years the Sahrawi people began mobilising against colonial occupation and in November 1957 launched an attack on Spanish troops in Tarfaya province allying themselves for the occasion with the Moroccan Liberation Army and penetrating southwards to attack the ‘colonial yoke’ in Mauritania. Spain thus decided to join forces with France to bring the insurrection to an end. In February 1958, therefore, operation Ecouvillon was launched and the two colonial powers defeated the Sahrawi rebels ← 13 | 14 → with help of the Royal Armed Forces of Sultan Mohammed V who subsequently personally claimed the Sahara as Moroccan for the first time without, however, making any precise territorial references.

At the beginning of the 1970s, following on from pressing demands by the United Nations, Spain began to consider decolonising the area5, reinforcing the independence ambitions of the Sahrawi people who formed full blown independence movements in this period, including the Saguia El Hamra and Rio de Oro Liberation Movement (MSL) set up in early 1967 under the leadership of Mohamed Sid Brahim Bassiri. The birth of the Western Sahara independence movement involved fighting Spanish occupation and Morocco’s territorial demands at the same time. The first manifestations of Sahrawi ability to mobilise against Spain was a peaceful demonstration organised in Zemla on 17th June 1970 which met with bloody repression in which Bassiri was killed. This violent reaction to their peaceful demands for independence persuaded the Sahrawi people that the time had come for a different form of resistance and to this end the Polisario Front (Popular Front for the Liberation of Saguia el Hamra and Rio de Oro) was set up on 10th May 1973 and just ten days later armed struggle was set in motion6.

On 24th May 1975 the Spanish governor of the Western Sahara, General Gomez de Salazar, announced plans to evacuate the area in Operation Hirondelle and negotiations with the Polisario Front began. Determined to occupy the territories liberated by Spain, however, Hassan II prompted a peaceful march of Moroccan ‘volunteers’ to take control of what he called “the Moroccan provinces of the Sahara”. The so-called Green March, re-christened the Black March by the Sahrawi people, began on 6th November 1975. 350,000 Moroccans moved into the area from the North-West and met with no opposition from Spain. A curfew was imposed on the whole of the Western Sahara.

The international crisis

The principle of self-determination for the Western Sahara was recognised by the UN for the first time in the 1960s in response to demands that Spain decolonise the area7. Article 73 of the UN Charter ← 14 | 15 → sets out that the “Governing state’s obligations include notifying the Secretary General on any independence granted to the peoples governed. In the 1950s annual reports on the Western Sahara were the competence of Spain although the latter was initially reluctant to do so as it considered the area a province across the seas, a metropolitan area with a Spanish population not a people with the right to self-determination, and thus its government as legitimate. However, in the context of the Cold War, fears that the issue might trigger off disputes in other metropolitan territories in which Spain had significant interests, such as the Canary Islands, prompted Spain to fulfil its duties. The Western Sahara was thus included in the territories covered by Resolution 1514 of 1960 which sanctioned the right to self-determination and thus the right of the Sahrawi people to this same self-determination.

In 1965-66, moreover, two specific resolutions were approved – A/Res/20/2072 and A/Res/21/2229 – which reiterated this right to self-determination and established the principle that it was the Sahrawi people who should decide whether to set up their own state or join an existing state in a referendum. Still fearful of possible repercussions for the Canary Islands, Spain did not oppose the resolution and decided to call a referendum in 1974 after completing a census. Morocco expressed its opposition to Spain’s decision and set in motion action designed to disrupt the General Assembly prompting Spain to proclaim the existence of a judicial dispute over the Sahara and pass the task of sorting it out onto the International Court of Justice. In reiterating that the Western Sahara had always been under its control, however, Spain was responding to Moroccan ambitions and denying the existence of a dispute. The appropriateness of referring the matter to the International Court of Justice, however, split the General Assembly. On the 13th of December 1974 Resolution 3292 requesting an opinion on two key issues was adopted with a great many abstentions. The first of these was the issue of whether the Western Sahara had been a terra nullius at the moment of its occupation by Spain and, in the event that this had not been the case, what legal bonds existed between the Sahara, Morocco and Mauritania. As there was no dispute underway over the Western Sahara as the two resolutions confirming its right to self-determination had both been approved by Spain, the Court could have abstained from expressing an opinion.

But the Court expressed an advisory opinion on 16th October 1975 stating that the Western Sahara was not a terra nullius – a land occupied by people with no social or political organisation – in the 19th century, though one which had nothing in common with the concept of state sovereignty as conceived of in Western political culture. The area was inhabited by a people who were predominantly nomadic but divided politically and socially into tribes led by chiefs who were recognised as ← 15 | 16 → legitimate representatives. It was these same tribal chiefs who had signed the protectorate treaty in 1884 with Spain which had rapidly degenerated into full blown colonial domination. The Court noted the existence of certain bonds of servitude between the Sultan of Morocco and a number of tribes living in the area but ruled out any form of territorial sovereignty over the Western Sahara by Morocco and Mauritania. In conclusion, the opinion thus denied the existence of elements capable of casting doubt on the applicability of 1960 Resolution 1514 on the decolonisation of the Western Sahara and, in particular, the applicability of the principle of self-determination as the free and authentic expression of the will of the area’s people.

The Court’s opinions were never put into practice, however. In fact, having lost its legal battle the Rabat government moved onto the politics of the de facto and, on the 16th of October, the day the Court’s advisory opinion was published, King Hassan II launched his Green March to bring the ‘re-integration’ of the Western Sahara into the Moroccan kingdom to fruition. Although this march was presented as peaceful it was a full blown violation of the border and thus of the principle of territorial integrity. As the General Assembly had no jurisdiction over the dispute Spain turned to the Security Council, appealing to Chapter VI and specifically to Article 35 and demanding that a meeting be called to condemn the Moroccan government’s plans which it saw as an invasion threatening international peace and security. The Council opted to call for direct negotiations between those involved, in the first place, with great moderation. It condemned the Green March but made no reference to violations of international borders.

Aware of its inability to protect the Western Sahara, Spain entered negotiations with Morocco and Mauritania which led to the Madrid Tripartite Accord known as the Declaration of Principles on Western Sahara on 14th November 1975. The solution adopted was that Spain would give up its mandatory powers and a joint government would be set up which was to lead to total decolonisation together with Djemaa, the Sahrawi people’s representative body. Despite the doubts which were raised on several sides on the validity of the agreement the General Assembly limited itself to approving two resolutions which confirmed the rights of the Sahrawi people to self-determination. The first of these referred to Spain’s organisation of a self-determination consultation together with the United Nations. The latter, on the other hand, reiterated the final objective of total decolonisation but constituted a de facto acceptance of the Madrid Accords, as formalised by the Rabat Pact of 1976 in which Morocco and Mauritania divided up the area between them, for the temporary government of the area. Further significant developments in the General Assembly’s stance followed with resolutions 34/37 in ← 16 | 17 → November 1979 which called for partnership with the Organisation of African Unity (OUA) to begin.

The General Assembly also acknowledged the peace treaty signed in Algiers on 10th August 1979 between Mauritania, which thus exited the dispute and abandoned the occupied area, and the Polisario Front which was recognised, for the first time, as the official “representative of the Sahrawi people”. This resolution was the model for subsequent, yearly, virtually carbon copy declarations by the General Assembly while the OUA was entrusted with the decolonisation of the area.

In 1976 the Sahrawi people founded the RASD, the Sahrawi Arab Democratic Republic, which attempted to demonstrate the legitimacy of its declaration of independence right from the start in a memorandum in which it maintained that “the Sahrawi people have natural and original sovereignty […], possess inalienable rights to self-determination and the most natural situation is independence”. The proclamation was entirely legal because it accorded fully with the opinions expressed by the International Court of Justice and the UN resolutions, in particular that dating to 1960 relating to the Granting of Independence to Countries and Peoples Subject to Colonialism. Despite the legal foundations for their actions, however, the Sahrawi people struggled to gain political recognition as a state for the RASD. Membership of the Organisation of African Unity (OUA) in 1982 contributed to the official legitimation of its political status which was accompanied by recognition by 76 mainly non-aligned states, former colonies and countries in the southern hemisphere which had fought such battles themselves and made similar claims in the past. This was not, however, accompanied by recognition from world powers and the northern hemisphere and today RASD has access only to certain international forums and solely in an observer capacity with consequent reduced weight and credibility.

Morocco even went to the lengths of leaving the OUA when RASD was granted membership and has carried out an active diplomatic offensive against its recognition over the years inviting states which had already recognised it to withdraw their diplomatic support, on occasions successfully. Mauritania has taken a different path and in 1979 formally distinguished its own diplomatic position from Morocco’s by withdrawing its troops from the Western Sahara and joining Algeria in supporting the Sahrawi people.

A solution to the crisis seemed imminent in 1988 when the UN Security Council authorised the Secretary General to appoint a special representative assisted by a “support group” in Resolution 621 with “sole and exclusive responsibility for all matters relating to the organisation and implementation of the referendum”. The responsibilities of the ← 17 | 18 → special representative encompassed potentially legislating in the Western Sahara, action to free prisoners on both sides and all measures designed to facilitate refuge return to the area. Lastly an immediate ceasefire was called for to enable the referendum to be implemented, a condition which was achieved on 6th September 19918.

Details

Pages
322
ISBN (PDF)
9782807601048
ISBN (ePUB)
9782807601055
ISBN (MOBI)
9782807601062
ISBN (Softcover)
9782807601031
Language
English
Publication date
2017 (January)
Tags
European Union Western Sahara Self-Determination Sovereignty Natural Resources
Published
Bruxelles, Bern, Berlin, Frankfurt am Main, New York, Oxford, Wien, 2017. 322 pp.

Biographical notes

Marco Balboni (Volume editor) Giuliana Laschi (Volume editor)

Marco Balboni is Professor of International and European Law at the University of Bologna. As an expert in non-discrimination and refugee law, he sits in the Territorial Commission for the Recognition of the International Protection for Refugees. His fields of expertise include self-determination, especially in relation to the Western Sahara case and the Sahrawi refugees. Giuliana Laschi is professor of History of European Integration (Jean Monnet Chair ad personam) and Contemporary History at the University of Bologna. She presides the Scientific Committee of Jean Monnet Centre of Excellence – Punto Europa Forlì and is Vice-President of AUSE (University Association of European Studies). Her last books include The European Community and the World (ed., 2014), L’Europa e gli altri (2015).

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