Spain as Administering Power of Western Sahara
Eduardo Trillo de Martín-Pinillos Ph.D.
Associate Professor of International Law, UNED, Spain
The subject of my presentation is Spain as Administering Power of Western Sahara, and I must confess now that, through my research on the subject, I have learnt a lot, not only about the International Law on decolonization, but also about the perfidy of States to distort it in accordance with their own interests.
The question of the current international status of Spain, in relation to Western Sahara, requires, on the one hand, an analysis of the International legal situation of the territory of Western Sahara, and, on the other hand, an analysis of the status of Morocco, as the current occupant of that territory. The law applicable to the determination of this question is contained, in general, in the United Nations Charter, in General Assembly resolutions pertaining to decolonization, in the International Treaties concerning Western Sahara and in the 1969 Vienna Convention on the Law of treaties. We consider, as well, that the applicable Spanish legislation should be taken into account to clarify any possible responsibilities of Spain in relation to the present situation in this territory.
Nevertheless, for the purpose of the present analysis, in principle, the body of Security Council resolutions pertaining to the political process is not relevant to the International legal status of Spain in Western Sahara. As it was reaffirmed by the International Court of Justice in its advisory opinion of 1970, on the illegal presence of South Africa in Namibia, the General Assembly is the United Nations body in charge of decolonization and, therefore, competent to determinate, change or revoke the legal condition of Administering Power in a non self-governing territory. Notwithstanding that, only through its cooperation with the Security Council, may the General Assembly make its resolutions effective in order to maintain International peace and security.
As it is well known, Western Sahara was incorporated to the Spanish rule, as a protectorate, in 1884. In 1960, Spain stated before the United Nations that, from that moment on, it pledged itself to transmit technical and statistical information on its colonies, under Article 73 e) of the United Nations Charter. Western Sahara was then included in 1963 in the List of Non-Self-Governing Territories, and, in 1965, there was the first General Assembly resolution qualifying Spain as the Administering Power of Western Sahara. Later, other General Assembly resolutions reaffirmed the applicability to this territory of the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples, which proclaimed their right to self-determination.
Despite the increasing pressure from the countries neighbouring the territory, Morocco, Mauritania and Algeria, Spain did not make any move towards its decolonization until September 1974, when it informed the United Nations General Assembly of the coming self-determination of Western Sahara. However, this significant decision was not welcomed by Morocco. The reason was clear, this country was now afraid that the holding of a referendum would probably lead to the independence of the territory. Therefore, it immediately lobbied other UN states to stop it. In December, a General Assembly resolution suspended the referendum process and asked the International Court of Justice to produce an advisory opinion on whether Morocco and Mauritania have had, before the Spanish colonization, any sovereign right on the territory. In that case, the referendum would be unnecessary, as Western Sahara would join its former sovereign State, in accordance with the principle that the self-determination of a territory cannot break total or partially the National unity and territorial integrity of a country.
1975 was a fateful year. That summer, began General Franco’s death throes and its regime started to be more and more worried about its own survival. In May, the United Nations sent a visiting mission to the territory that could observe that the majority of the population was in favour of POLISARIO, the pro-independence guerrilla group. In October 16th, the same day that the International Court of Justice issued its advisory opinion on the matter, stating that there were not any previous sovereign rights which could prevent the right of the Saharawi people to self-determination from being applied, Morocco launched tens of thousands of Moroccan citizens to peacefully occupy, by the force of facts, what it was denied by International Law. On Spanish request, the Security Council met, but it did not take any effective decision to support Spain. Morocco cunningly was not using military means to seize Western Sahara, and the Security Council merely called both sides to negotiate to put an end to the crisis. Then, facing this situation, the Spanish Government, in its weakness, wished to get rid of Western Sahara as soon as possible in an environment where the constraints of the “Cold War” between the two blocks were extremely rigid, and the Americans were on the Moroccan side.
And that was the reason behind the Madrid Agreement of November 14th 1975, between Spain, Morocco and Mauritania. Breaking its responsibilities as Administering Power of Western Sahara as stipulated in Article 73 of the United Nations Charter, through the Agreement, Spain allowed the establishment of a new administration, Moroccan-Mauritanian, in the territory, and its military occupation by these two States. Spain was fully aware that this new administration was against the self-determination of the Saharawi people and the Agreement itself did not mention any reference to this obligation.
Five days later, in accordance with the last paragraph of the said Agreement, the Spanish Legislative passed a law on the decolonization of Western Sahara authorizing the Executive to undertake it by any measure, as necessary. This way, from the point of view of the Spanish legal system, Spain had put an end to all its responsibilities in relation to Western Sahara and the Saharawi people.
However, Spain, in order to be truly free from its responsibilities in the International Order, it needed approval from the UN General Assembly. As Administering Power, Spain had no sovereignty over Western Sahara, it acted as a delegate from the International Community by making use of its power to run the territory. Consequently, it could not ever make any act of disposal in relation to a non self-governing territory without the authorization of United Nations.
There were two contradictory Resolutions on the subject, 3458 A and 3458 B, of December 10th 1975. Resolution A, which requested Spain to comply with its international obligations as Administering Power, in particular, the decolonization, through the self-determination of the Saharawi people, obtained much more support than Resolution B, which, although it took note of the Madrid Agreement, it appealed the temporary tripartite administration to decolonize the territory also through self-determination. Therefore, understandably, Spain, Morocco and Mauritania, failed to obtain the endorsement of their agreement by the General Assembly. As far as United Nations was concerned, Western Sahara was still a non-self-governing territory and its Administering Power was Spain.
The fact that, in January, the Madrid Agreement was registered by Spain at the United Nations did not change this legal perception, as according to the UN treaty registration rules, the Secretariat has no mandate to qualify a document that is sent for registration by a State member. Moreover, Morocco and Mauritania had already registered the Agreement the day before the General Assembly passed the two resolutions on the subject.
In conclusion, Spain has remained as “de jure” Administering Power of Western Sahara, and it is still bound by Article 73 e) of the United Nations Charter, to transmit information on the territory to the IV Committee. That is why, in its latest annual report to the General Assembly last March 2006, pertaining to the transmittal of information from Administering Powers, Spain is included in relation to Western Sahara. The fact that the document contains, in a footnote, a reference to the statement made by Spain to the Secretary-General, on February 26th 1976, which informed the UN that, from that date, it had terminated its presence in the territory and that it considered itself exempt from any International responsibility in relation to the administration of Western Sahara, has no legal value at all, it merely explains why Spain does not transmit any information. Otherwise, Spain would have not appeared in that list since 1976.
Therefore, if Spain is still the Administering Power of Western Sahara, what has Morocco being doing there for more than thirty years? What is the legal façade, which allows this country to administrate “de facto” this territory and to prevent the Saharawi people from acceding to self-determination? The only answer, in our view, is Spain. According to International Law, and to the United Nations, this country is still responsible for the self-determination of the territory and the protection of its population and natural resources. Nevertheless, notwithstanding that the Madrid Agreement was not endorsed by United Nations, Spain has never invalidated or denounced it, either based on its nullity “ab initio” or on its violation of an essential rule for the object and aim of the Agreement.
For Spain, the current Moroccan occupation of Western Sahara is perfectly valid and legal; Morocco is the new Administering Power of Western Sahara. Furthermore, since its desertion, Spain has seemed to behave against all its responsibilities as Administering Power.
Firstly, although its main responsibility as “de jure” Administering Power of Western Sahara is to prepare its population to exercise its right to self-determination, Spain has never taken any serious action to force Morocco to comply with it. On the contrary, it kept a neutral position, no matter what political party was in power, as if Spain was not involved in the problem. And, lately, since the arrival of a new socialist government, in 2004, it has favoured a negotiated solution between two sides, instead of defending the implementation of the right to self-determination of a colonial territory.
Secondly, as regards the protection of the Saharawi population, by withdrawing its nationality from all of them by decree in August 1976, Spain rendered them stateless and, consequently, without any International protection. The Spanish desertion was so fast and hurried that the right to opt for Spanish nationality, recognized in that decree, could not be exercised by the Saharawi because of the conditions of the Moroccan occupation or their flight to Algeria. Even worse, in complete discrimination, the current Spanish legislation denies the Saharawi the special legal procedure, granted to any person coming from a former colony, to obtain Spanish nationality. The other option for them, of course, is to accept Moroccan nationality.
And, finally, in relation to its due protection of Western Sahara’s natural resources, Spain has only acted for its own advantage. A good proof of this position are the different fisheries agreements between Spain and Morocco covering the Saharan waters, where the Moroccan jurisdiction is clearly accepted. We cannot forget either that the Spanish State had, until 2002 when it was sold, ownership of a significant share of the phosphate exploitation. Of course, the Saharawi population as such, has never been mentioned in those agreements or has ever received any of the profits coming from the exploitation of their waters or soil.
If this was not enough, the problem now is that this Spanish official doctrine has also successfully penetrated other States. How can we explain the recent agreement on fisheries between the European Union and Morocco? Even, within the United Nations, the legal opinion given by the Under-Secretary-General, Hans Corell, seems to support the idea that Morocco is acting under a legal subrogation of mandate made by Spain, the Administering Power, to exploit Western Sahara, when it implicitly concludes that Morocco may exploit such natural resources as long as it is conducted in accordance with the needs and interests of the people of that territory. Otherwise, Mr. Corell would have broken the said doctrine established in 1970, by the International Court of Justice, regarding the illegal occupation of Namibia by South Africa. In the same sense, we can interpret the increasing references, in the Secretary General documents, to Morocco as “administrative power” of Western Sahara, a notion that does not exist in International Law, and not as the illegal occupant of that territory.
Why has no State ever requested the General Assembly to withdraw from Spain its mandate as Administering Power to stop this perverse legal fiction? A new resolution would be enough to clarify the current situation, the United Nations would then recover its powers over the territory and Western Sahara would march free to its self-determination.
However, this Spanish fiction may please the more powerful members of the International Community, which openly, or not, support the Moroccan occupation, and, therefore, it is becoming more and more consolidated, against one of the fundamental principles of International Law, the right to self-determination of colonial territories.