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The Stealing of the Sahara

Published online by Cambridge University Press:  27 February 2017

Thomas M. Franck
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Extract

The Western—or, until now, Spanish—Sahara is a small place. Its decolonization and the fortunes of its mere 75,000 inhabitants do not attract instant or prolonged public attention. Nevertheless, or, perhaps, in part for that very reason, the disposition of the Sahara case by the United Nations has been monumentally mishandled, creating a precedent with a potential for future mischief out of all proportion to the importance of the territory.

Type
Research Article
Information
American Journal of International Law , Volume 70 , Issue 4 , October 1976 , pp. 694 - 721
Copyright
Copyright © American Society of International Law 1976

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References

1 For a recent summary of UN consideration of the Belize case, see The Report of the Special Committee on the Situation With Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/10023/Add.8 (Part III), at 15-29 (1975).

2 TheLondon Times has noted that “if the French withdraw completely, it seems certain that Somalia, on the model of Morocco in Spanish Sahara, will seize it during the ensuing troubles between the Issa and Afar factions.” The Times (London), Feb. 6, 1976, at 15 (editorial). For a recent summary of UN consideration of this issue, see The Report of the Special Committee on the Situation With Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/10023/Add.6 (Part II) (1975).

3 Supra note 1, at 3-14.

4 The Times (London), Feb. 17, 1976, at 7; id. Feb. 20, 1976, at 6; id. Feb. 25, 1976, at 7.

5 Morocco long opposed the independence of Mauritania. In the historic debate on Resolution 1514 (XV) Morocco accused the French of attempting “to partition Morocco and disrupt its national territorial unity, by setting up an artificial State in the area of Southern Morocco which the colonialists call Mauritania. The population of that area does not even know the word ‘Mauritania.’ If you tell a Bedouin of socalled Mauritania that you are in Mauritania, he will not understand what you aretalking about.” 15 GAOR 947, at 1271 (1960) (remarks of Mr. Ben Aboud, Representative of Morocco).

6 It is estimated that nearly 60,000 Timorese have been killed in the course of the territory's decolonization. N.Y. Times, Feb. 15, 1976, at 11.

7 The Times (London), April 2, 1976, at 7.

8 N.Y. Post, April 28, 1976, at 17.

9 N.Y. Times, Feb. 27, 1976, at 3.

10 Id W. March 1, 1976, at 3.

11 Id Feb. 28, 1976, at 6; id. March 8, 1976, at 7.

12 At the African Foreign Ministers’ meeting in Addis Ababa at the beginning of March, 1976, it was reported that as many as twenty African states favored recognition of POLISARIO. Id. March 1, 1976, at 3.

13 Id. Feb. 22, 1976, at 1.

14 For a discussion of the historic U.S. relation to self-determination, see Pomerance, , The United States and Self-Determination: Perspectives on the Wilsonian Conception, 70 AJIL 1 (1976)Google Scholar.

15 Report of the United Nations Visiting Mission to Spanish Sahara, 1975, in The Report of the Special Committee on the Situation With Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/10023/Add.5, Annex, at 26 (1975) [hereinafter cited as Visiting Mission. ].

16 Id. at 27.

17 Id. at 28.

18 An excellent short summary of Saharan demography is provided by the 1975 report of a UN Visiting Mission to the country. It states that: [the] indigenous population of the Territory is comprised for the most part of persons of Moorish, or bedouin, race who are united by a common language, hassania (a form of Arabic), and by strong cultural and traditional ties … [T]he basic social unit, the family, is not thought of as an independent group, but rather as forming a part of a social group (fraction), and family group (subfraction) of a tribe … in most cases extending far beyond the political frontiers of the Territory. Thus, the majority of Saharans identify closely with other members of their tribe, for instance the Erguibat, Ait Lahsen and Ulad Delim to name only three, who are to be found also in Mauritania, Morocco and Algeria. This is in conformity with age-old tradition by which the various tribal groups have nomadized over wide-ranging areas without any regard to the political boundaries imposed by colonial régimes; it was in fact an intrinsic feature of a traditional economic system based on a continuous search for pasture and water and in which ownership of land was unknown. Today, though nomadism is declining, there is still a marked sense of kindred among the members of tribes and their subdivisions which straddle the frontiers of the Territory and its neighbors, and many Saharans have left the Territory either to live permanently among their relatives and kindred in the neighboring countries, or to settle temporarily for economic reasons (including the drought) or because they are political exiles and refugees. For this reason, and because of the close affinity between the Saharans of the Territory and those, for example, in the Moroccan province of Tarfaya or the border regions of Mauritania, it is extremely difficult to determine who among them is a Saharan indigenous to the Territory. Id.

19 G.A. Res. 1514, 15 GAOR Supp. 16, at 66-67, UN Doc. A/4684 (1966).

20 Id. Art. 2.

21 Id. Art. 6.

22 OAU Assembly AHG/Res. 17(I), Cairo Ordinary Session, 17-21 July 1964. See also The Charter of the Organization of African Unity, Article 3(3), which pledges “respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence.“

23 G.A. Res. 850, 9 GAOR Supp. 21, at 28, UN Doc. A/2890 (1954).

24 Fifteen Years of the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples, 2 Decolonization, No. 6, at 19 (1975) [hereinafter cited as Fifteen Years].

25 Id at 22.

26 G.A. Res. 1654, 16 GAOR Supp, 17, at 65, UN Doc A/5100 (1961).

27 Fifteen Years, supra note 24, at 19. Enumerated here are the many instances of self-determination elections and plebiscites in which the UN General Assembly asked to be involved as observer and supervisor, an involvement sometimes welcomed and sometimes not by the colonial authority.

28 G.A. Res. 2005, 19 GAOR Supp. 15, at 7, UN Doc. A/5815 (1965).

29 G.A. Res. 2355, 22 GAOR Supp. 16, at 54-55, UN Doc. A/6716 (1967).

30 G.A. Res. 3285, 29 GAOR Supp. 31, at 98, UN Doc. A/9631 (1974).

31 Fifteen Years, supra note 24, at 21.

32 3 Repertory of Practice of UN Organs, Supp. No. 3 (period 1959-1966), at 98; see also 19 GAOR Supp. 1A, at 8-9, UN Doc. A/5801/Add.l (1964).

33 G.A. Res. 2353, 22 GAOR Supp. 16, at 53, UN Doc. A/6716 (1967).

34 22 GAOR, Annexes, Addendum to Agenda Item No. 23 (Part II), at 238, UN Doc. A/6700/Rev.I (1967).

35 G.A. Res. 2504, 24 GAOR Supp. 30, at 3, UN Doc. A/7630 (1969). Before ratifying the “act of free choice” the General Assembly rejected an amendment submitted by Ghana which would have given the people of West Irian a further opportunity to express their will. 24 GAOR, Annexes, Agenda Item No. 98, at 40, UN Doc. A/L.576 (1969). The Ghanaian amendment was defeated by a vote of 60 to 15 with 39 abstentions.

36 Report of Secretary-General regarding act of self-determination in West Irian, 24 GAOR, Annexes, Agenda Item No. 98, at 2, UN Doc. A/7723 (1969).

37 Report of the Secretary-General on the Work of the Organization. 25 GAOR, Supp. I, at 64, UN Doc. A/8001 (1970).

38 France refused to accept a UN presence during its 1967 referendum on the future of French Somaliland.

39 19 GAOR, Annexes, Annex No. 8 (Part I), at 290-91, UN Doc. A/5800/Rev.I (1964).

40 G.A. Res. 2072, 20 GAOR Supp. 14, at 59-60, UN Doc. A/6014 (1965).

41 Note by the Secretary-General, 13 GAOR, Annexes, Agenda Item No. 36, at 37, UN Doc. A/C.4/L385/Rev. I (1958). See also Law of 21 April 1961 and Decree No. 3349 of 29 November 1962.

42 Report of the Special Committee on the Situation with Regard to the Implementaion of the Declaration on the Granting of Independence to Colonial Countries and Peoples, 21 GAOR, Annexes, Addendum to Agenda Item No. 23, 603. UN Doc. A/6300/Rev.I (1966).

43 Id. at 604.

44 Id. at 605.

45 Id. at 607.

46 Ibid.

47 G.A. Res. 2229, 21 GAOR Supp. 16, at 72-73, UN Doc. A/6316 (1966).

48 Ibid.

49 22 GAOR, Annexes, Addendum to Agenda Item No. 23, at 209, UN Doc. A/6700/ Rev.I (1967).

50 G.A. Res 2354, 22 GAOR Supp. 16, at 53-54, UN Doc. A/6716 (1967).

51 The 1968 resolution is G.A. Res. 2428, 23 GAOR Supp. 18, at 63-64, UN Doc. A/7218 (1968). The 1969 resolution, which also “regrets that it has not yet been possible for the consultations to take place which the administering Power was to conduct in connexion with the holding of a referendum,” is G.A. Res. 2591, 24 GAOR Supp. 30, at 73-74, UN Doc. A/7630 (1969). The resolutions passed between 1970 and 1973 are: G.A. Res. 2711, 25 GAOR Supp. 28, at 100-01, UN Doc. A/8028 (1970); G.A. Res. 2983, 27 GAOR Supp. 30, at 84-85, UN Doc. A/8730 (1972); G.A. Res. 3162, 28 GAOR Supp. 30, at 110-11, UN Doc. A/9030 (1973).

52 Letter dated 8 September 1966 from the Permanent Representative of Spain to the United Nations addressed to the Chairman of the Special Committee, 21 GAOR, Annexes, Addendum to Agenda Item No. 23, Annex, at 621 (1966).

53 Visiting Mission, supra note 15, at 24.

54 Id. at 40.

55 Ibid.

56 Id. at 40-41.

57 Reply to the Communication of the General Assembly of the Sahara by the Head of the Spanish State. UN Doc. A/9176, Annex IV, at 1 (1973).

58 G.A. Res. 3162, 28 GAOR Supp. 30, at 110-11, UN Doc. A/9030 (1973).

59 NAC/FM/CONF.l/Res.5, August 12, 1972, the Georgetown Declaration, the Action Programme for Economic Co-Operation and Related Documents, Conference of Foreign Ministers of Non-Aligned Countries, Georgetown, Guyana, August 8-12, 1972; OAU Council Res. CM/Res.301(XXI), OAU Council of Ministers, Addis Ababa, May, 1973; Res. No. 6, IVth Conference of Heads of State or Government of Non-Aligned Countries, Algiers, 5-9 September, 1973; Fundamental Texts, Declarations, Resolutions, Action Programme for Economic Cooperation.

60 Letter dated 10 July 1974 from the Permanent Representative of Spain to the United Nations addressed to the Secretary-General, UN Doc. A/9655 (1974).

61 Letter dated 20 August 1974 from the Permanent Representative of Spain to the United Nations addressed to the Secretary-General, UN Doc. A/9714 (1974).

62 Report of the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples Covering Its Work During 1974. UN Doc. A/9623/Add.4 (Part II), at 23 (1974).

63 Supra note 60, at 2.

64 Letter dated 23 September 1974 from the Minister for Foreign Affairs of Morocco addressed to the Minister for Foreign Affairs of Spain, UN Doc. A/9771, Annex, (1974).

65 Letter dated 20 August 1974 from the Acting Chargé d'affaires of the Permanent Mission of Mauritania to the United Nations addressed to the Secretary-General, UN Doc. A/9715, Annex, at 1, 2 (1974). See also UN Doc. A/PV.2251, at 82 (1974) (Mr. Ould Mouknass, Representative of Mauritania addressing the General Assembly).

66 Le Monde Nov. 27, 1975, at 1, 5. the Economist, Sept. 13, 1975, at 58.

67 UN Doc. A/PV.2265, at 57-60 (1974).

68 U.S. Representative Barbara White took the position that her country in principle supported the use of the Court, whenever possible, in resolving legal disputes. UN Doc. A/C.4/SR.2125, at 11 (1974).

69 UN Doc. A/C.4/SR.2126, at 7 (1974).

70 U N Doc. A/C.4/SR.2130, at 27 (1974).

71 UN Doc. A/C.4/SR.2131, at 19 (1974).

72 Id. at 8.

73 Id. at 12.

74 Id. at 25.

75 G.A. Res. 3292, 29 GAOR Supp. 31, at 103-04, UN Doc. A/9631 (1974).

76 The other members of the Mission were Marta Jiminez Martinez (Cuba) and Manouchehr Pishva (Iran).

77 Visiting Mission, supra note 15, at 4.

78 Id. at 5.

79 Id. at 7-14.

80 Id. at 48.

81 Id. at 50.

82 Id. at 52.

83 Id. at 52, 63.

84 Id. at 48.

85 Id.at 55.

86 Ibid.

87 ibid.

88 Id. at 56.

89 Report of the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/10023/Add.5, at 11 (1975).

90 Ibid.

91 A popular consultation with the inhabitants, the Mission noted: … must be based on the participation of all Saharans belonging to the Territory. It is therefore important to establish who is and who is not a Saharan belonging to the Territory. The concerned and interested parties have agreed that this task should be entrusted to a commission of experts designated by the United Nations, which would work in close co-operation with the administering Power and with the other concerned and interested parties. Id., at 9.

92 Advisory Opinion on Western Sahara, [1975] ICJ Rep. 12 [hereinafter cited as Advisory Opinion].

93 Id., at 29. The questions put to the Court by Resolution 3292 (XXIX), supra note 75, were the following: I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)? If the answer to the first question is in the negative, II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?“

94 Ibid.

95 Id. at 30.

96 Ibid.

97 G.A. Res. 1541(XV), 15 GAOR Supp. 16, at 29-30, UN Doc. A/4684 (1960), cited by the ICJ with approval in its Advisory Opinion, at 32-33.

98 Id. at 34-35.

99 Id. at 35.

100 id. at 36.

101 Id. at 36-37.

102 Id. at 37.

103 Id. at 48.

104 Id. at 49.

105 Id. at 56-57.

106 Id. at 68.

107 Id. at 69.

108 Id. at 176 (Dissenting Opinion of Judge Ruda).

109 The expression appears in Judge Dillard's Separate Opinion, where he takes the view that the concept was inapplicable to the Western Sahara and that it was therefore unnecessary for the Court to deal with the principle of territorial integrity. Id. at 120.

110 Press release of the Permanent Mission of Morocco to the United Nations on 16 October 1975, quoted in UN Doc. S/PV.1849, at 11 (1975).

111 Letter dated 18 October 1975 from the Permanent Representative of Morocco to the United Nations addressed to the President of the Security Council. UN Doc. S/11852(1975).

112 Letter dated 18 October 1975 from the Permanent Representative of Spain to the United Nations addressed to the President of the Security Council.UN Doc S/11851 (1975).

113 Costa Rica, Draft Resolution. UN Doc. S/11853 (1975).

114 S.C. Res. 377 (1975) adopted by the Security Council at its 1850th Mtg. on Oct. 22, 1975.

115 Ibid.

116 Ibid.

117 Report by the Secretary-General in pursuance of Security Council Resolution 377 (1975) relating to the situation concerning Western Sahara. UN Doc. S/11863, at 5 (1975).

118 Ibid.

119 Letter dated 1 November 1975 from the Charge d'Affaires, A.I. of the Permanent Mission of Spain to the United Nations addressed to the President of the Security Council. UN Doc. S/11864 (1975).

120 UN Doc. S/PV.1852, at 13-15 (1975). (Mr. Arias-Salgado, Representative of Spain, addressing the Security Council).

121 S.C. Res. 379 (1975), adopted by the Security Council at its 1852nd Mtg. on Nov. 2, 1975.

122 UN Doc. S/PV.1852, at 22 (1975).

123 Id. at 72-75.

124 Id. at 76.

125 Id. at 82-85.

126 Official communiqué of the 1853rd Meeting of the Security Council, UN Doc. S/11869 (1975).

127 UN Doc. S/PV.1854, at 16 (1975) (Representative Slaoui, addressing the Security Council).

128 S.C. Res. 380 (1975), adopted by the Security Council at its 1854th Mtg. on Nov. 6, 1975.

129 Mr. Joumaini's statement is quoted in UN Doc. S/PV.1854, at 26-27 (1975).

130 Report by the Secretary-General in pursuance of Security Council Resolution 379 (1975) relating to the situation concerning Western Sahara. UN Doc. S/11874, at 4 (1975).

131 Id at 6.

132 Id. at 7.

133 Third report by the Secretary-General in pursuance of Security Council Resolution 379 (1975) relating to the situation concerning Western Sahara. UN Doc. S/ 11880, Nov. 19, 1975, Annex I, at 1.

134 In April, Morocco published the terms of the agreement by which Morocco and Mauritania will share the proceeds of the lucrative Bou Craa mines. The Times (London), April 17, 1976, at 5.

135 For further evidence of such an agreement, see, e.g., the oral pleadings, Mr. Slaoui (Morocco) CR 75/6 (uncorrected translation) (mimeographed), Wednesday, 25 June 1975, at 6-9. In the written pleadings, Mauritania and Morocco each claimed the whole Sahara and Mr. Slaoui had the task of bringing this into conformity with the partition agreement. In effect, he told the Court not to worry about it, that: … there is a north and there is a south which juxtapose in space the legal ties of Western Sahara with Morocco and with Mauritania. Having regard to the question put to the Court, and considering that, by definition, the mandate or the Court does not relate to any political problem and does not imply any territorial delimitation, the fact that there is overlapping between the north and the south that it would serve no purpose to define more accurately cannot modify the sense of the answers given by the Court. Id. at 8.

136 N.Y. Times, Feb. 11, 1976, at 28.

137 Supra note 133, Annex II, at 1.

138 The Economist, Dec 20, 1975, at 50.

139 UN Doc. S/PV.1854, at 36. (Representative Rahal, addressing the Security Council).

140 African Research Bull., Nov. 1-30, 1975, at 3837.

141 Id., Dec. 1-31, 1975, at 3872-74.

142 G . A. Res. 3458(A), UN Doc. GA/5438, at 254-55 (1975). (Press Release)

143 G . A . Res. 3458(B), UN Doc. GA/5438, at 256 (1975). (Press Release)

144 Waldheim Given Difficult Missions [Interview with the Secretary-General], 6 The Diplomatic World Bull., No. 5, March 8, 1976, at 1237, 1243. “I regret this development,“ aldheim said of the role assigned him in the contradictory resolutions. “It is a negative development: you could not have a clearer answer from me… .” Id, at1243.

145 It should be noted that the second resolution could have been defeated if the Assembly, by a simple majority, had determined both resolutions to be “important” thus requiring adoption by a two-thirds vote of those present and voting in accordance with Article 18(3) of the UN Charter.

146 UN Doc. A/PV.2435, at 92 (1975). (Representative Rahal of Algeria addressing the General Assembly); Le Monde, Dec. 9, 1975, at 3.

147 Newsweek, Jan. 26, 1976, at 35.

148 According to newspaper reports, 65 members took part in the vote, which coincided with Polisario's proclamation of the Sahara Arab Democratic Republic. N . Y. Times, Feb. 28, 1976, at 6.

149 Id., Feb. 27, 1976, at 5, and interviews.

150 Ibid.; 6 The Diplomatic World Bull., No. 5, March 8, 1976, at 1237, 1242.

151 The termination of the tripartite administration did not diminish the will of POLISARIO, or of Algeria, to resist Fierce fighting between the guerrillas and Mauritanians was reported by the Spanish press in January, even in the remote southern towns of Villa Cisneros and Aargub, far from where the Algerians were massing. N. Y. Times, Jan. 12, 1976, at 7. At Villa Cisneros (Dakhk), the Moroccan army commander commented that his men were there “to protect the Mauritanian army.” West Africa, Jan. 26, 1976, at 124. During January and February “bloody battles” between Algerian armored columns and the Moroccan army see-sawed around the Amgala oasis and Mahbes. N. Y. Times, Jan. 28, 1976, at 3; id., Jan. 29, 1976, at 8; id., Feb. 12, 1976, at 2; id., Feb. 16, 1976, at 10; id., Feb. 17, 1976, at 9. The sadder effects, however, were those on the civilian population. In retaliation for the flight of Sahrawi refugees into Algeria, President Boumediene had already summarily expelled 30,000 Moroccan civilians from his country. Newsweek, Jan. 26, 1976, at 35. On February 6, Algeria formally alleged that Moroccan and Mauritanian actions were now “virtually assuming the proportions of genocide.” Letter dated 6 February 1976 from the Permanent Representative of Algeria to the United Nations addressed to the Secretary-General, UN Doc. A/31/48 and S/11971, at 7 (1976). According to POLISARIO, on February 18 the Moroccans, using U.S. F-5 fighter planes, began to attack Sahrawi refugee camps inside Algeria at Oum Dreiga. In the first two days 45 civilians were reported killed and 378 wounded.

152 This point of view has been put forward in interviews by several high Secretariat personnel. It is also expressed in Jeune Afrique, Feb. 13,1976, at 20.

153 UN Doc. A/C.4/SR.2175, at 15, Dec. 3, 1975.

154 Id. at 22.

155 Id. at 32.

156 Id. at 33.

157 Id. at 5.

158 For a Guatemalan claim based on this argument, see UN Doc. A/PV.2431, Dec. 8, 1975, at 37, 38-40, Mr. Maldonado Aguirre addressing the General Assembly. For the Spanish claim that self-determination is applicable only to “those who had their roots” in a territory and not to “settlers,” see 23 GAOR, Fourth Comm., 1799th meeting, at 14 (1968). For Argentina's argument to the same effect in respect of the Falkland Islanders, see Report of the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, 19 GAOR, Annexes, Annex No. 8 (Part I), at 436-37, UN Doc. A/5800/Rev.I (1964).

159 28 GAOR Fourth Comm., 2074th meeting, at 302 (1973).

160 For example, it is a frequent assertion of white South Africans that most blacks arrived only after the white settlers had begun to develop the country. It is also the South African position that, with the creation of black “tribal homelands,” Africans in the white areas cannot expect to participate in the democratic process.