Western Sahara is the last colony in Africa. In 1963, while still under Spanish control, the Territory was officially recognized as a NSGT by the General Assembly under the UN Charter – a legal status it retains to this day.
The General Assembly in Resolution 1514 (XV) decided that in order to complete the process of decolonization, all NSGTs must progress to a “full measure of self‐government” by: (a) emergence as a sovereign independent State; (b) free association with an independent State; or (c) integration with an independent State.
During Spanish colonial role no such process of decolonization took place for Western Sahara. While Spain committed to organizing a referendum in 1972, no referendum was held. Instead, it offered Western Sahara to two neighboring countries, Morocco and Mauritania, under the so-called Madrid Accords of 14 November 1975.
The Saharawi people were thus denied the opportunity to exercise their right to self-determination, a founding principle of the UN and the Organization of African Unity (OAU)/African Union (AU). As a result, the people of Western Sahara created the Frente POLISARIO to fight against colonialism
In October 1975, the International Court of Justice (ICJ) confirmed the legal right of the Saharawi to a process of self-determination, which was to include the free and genuine expression of the will of the peoples of the Territory, and found no ties of territorial sovereignty between Western Sahara and either Morocco or Mauritania.
Despite this ruling, in November 1975 Morocco and Mauritania invaded Western Sahara. A 15-year war ensued against the Saharawi liberation movement – the Frente POLISARIO who declared an independent Sahrawi Arab Democratic Republic (SADR) on 27 February 1976. In the same month, Spain informed the UN Secretary-General that following its physical withdrawal from the Territory, it considered itself exempt from any international responsibility related to the administration of the Territory. Mauritania withdrew from Western Sahara by virtue of a peace agreement signed with the Frente POLISARIO in August 1979, and in February 1984, formally recognized the Sahrawi Arab Democratic Republic, a full member of the African Union.
Morocco occupied the western two‐thirds of Western Sahara, and built a sand wall (the Berm) along the length of the Territory to protect its position. The Frente POLISARIO continues to control the “Free Zone” to the east of the Berm.
In 1978, the OAU created an Ad-hoc Committee of Heads of State on Western Sahara, whose tireless efforts to resolve the dispute resulted in OAU resolution 104 (XIX) of 1983, which was adopted unanimously by the Summit, and which initiated the peace process.
Around the same time, the General Assembly adopted resolutions 34/37 (1979) and 35/19 (1980) that assert that Morocco is the occupying power of Western Sahara, and the UN has never recognized it as administering power of the Territory.
In 1988, joint mediation efforts by the UN and OAU produced a Settlement Plan with the aim of enabling the Saharawi people to exercise their right to self-determination. Both Morocco and the Frente POLISARIO accepted the Plan. The Plan was also adopted and endorsed by the Security Council in resolutions 658 (1990) and 690 (1991) that established the Mission for the Referendum in Western Sahara (MINURSO) with the primary tasks of (i) monitoring the ceasefire between Morocco and the Frente Polisario and (ii) preparing for a referendum on self-determination within six months to enable the Saharawi to vote upon their own future. The agreed ceasefire and the organization of the referendum were conceived as two inseparable elements of the OAU-UN Settlement Plan. Thus at the core, MINURSO’s mandate is to organize a referendum allowing the Saharawi to exercise their right to self-determination.
As soon as implementation of the Settlement Plan started, Morocco began putting all kinds of hurdles in the way, and in 2002 openly declared its unwillingness to go forward with the Settlement Plan (S/2002/178) alleging arbitrarily that it was not implementable. Despite efforts by the UN, including mediation efforts by former US Secretary of State, James Baker III, Morocco’s obstructions continued unabated. In 2004, Morocco declared its official rejection of any solution that would not legitimize, a priori, its illegal occupation of Western Sahara, and that it would only support a political solution based on autonomy within the framework of ‘Moroccan sovereignty’ (S/2004/325).
Morocco’s acting in bad faith in implementing the Settlement Plan, and the Houston Accords agreed to by the two parties under the auspices of James Baker III was because it knew too well that any free and fair referendum on self-determination to be held in Western Sahara, under UN supervision, would lead to the independence of the Territory.
And despite the publication of UN‐approved voter lists in 1999 and the UN’s exclusive authority over all matters relating to the organization of the referendum, no vote has yet been held. Morocco rejected the list of voters developed by MINURSO after 6 years of difficult work, and instead unilaterally declared sovereignty over Western Sahara.
After numerous attempts to overcome the stalemate caused by Morocco’s rejection of the Settlement Plan and referendum process, the Security Council, in resolution 1754 (2007), called on both parties “to enter into negotiations without preconditions with a view to achieving a just, lasting and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara.”
Following the adoption of resolution 1754 (2007), delegations from the Frente POLISARIO and Morocco met in four rounds of formal negotiations and nine rounds of informal talks under UN auspices between 2007 and 2012. The negotiations did not achieve any substantive progress due to Morocco’s unrelenting rejection for the Saharawi people to exercise their right to self-determination as provided for in the relevant UN resolutions. In fact, Morocco made it clear in Manhasset in 2007 that it would not accept any solution that would envisage the possibility of offering the option of independence to the Saharawi people.
Morocco’s modus operandi to obstruct all UN efforts was again evident after April 2014 when Ambassador Ross ushered in “shuttle diplomacy” to consult the parties on ways to resolve the conflict before resuming direct talks. Whilst the Frente POLISARIO showed their willingness to support the approach, Morocco entered into dialogue with Ambassador Ross on the principles guiding his mandate and mission, conditioning the resumption of the negotiating process upon receipt of formal answers. Unfortunately, the answers only prompted more questions or periods of silence from Morocco.
After months of delay, Morocco re-engaged with Ambassador Ross and to accepted the deployment of MINURSO Head, Kim Bolduc only as a result of a telephone call with UN Secretary-General on 22 January 2015, wherein, King Mohamed VI sought and was apparently given assurances that the 2015 SG’s Report would overlook the recommendation in the 2014 Report that, “if no progress occurs before April 2015, the time will have come to engage the members of the Council in a comprehensive review of the framework that it provided for the negotiating process in April 2007.” Other assurances given were: no mention of Morocco’s human rights abuses and its illegal exploitation of Western Sahara’s natural resources. Shuttle diplomacy bore no results.
On 4 November 2015 the Secretary-General issued a statement putting both parties on notice that their 2007 proposals have not paved the way for genuine negotiations and called for “true negotiations” between the Frente POLISARIO and Morocco, without preconditions and in good faith (SG/SM/17298-AFR/3255). The Frente POLISARIO welcomed the statement. The statement reaffirms the historical and legal bases of the Saharawi cause: that Western Sahara is not and has never been part of Moroccan Territory and that its final status is linked to the decolonization process and the right to self-determination of the Saharawi people.
The Secretary-General followed this pronouncement by making his first trip to Western Sahara, visiting the refugee camps and the liberated area on 5 March 2016. During his trip the SG used the word ‘occupation’ to describe the situation under which the Saharawi live. Morocco publicly pounced on the SG’s use of the word ‘occupation’ as a pretext to expel 84 civilian MINURSO personnel from Laayoune and close a military liaison office in Dakhla in occupied Western Sahara.
Morocco’s action to expel MINURSO personnel are in direct violation of its legal obligations as a responsible member of the international community, including article 25 of the UN Charter to respect and implement decisions of the Security Council, and article 100(2) of the UN charter to respect the exclusive international character of MINURSO, as well as in violation of its obligations under the Status of Mission Agreement, which it signed, not to restrict MINURSO’s ability to carry out its mandated functions free of interference and restriction of movement. Morocco’s actions have set a dangerous precedent for the future of UN peacekeeping missions around the world, rendering UN field presence vulnerable to unilateral expulsions at the whim of a government, especially because the doctrine of persona non grata cannot, as a principle, apply to UN personnel on a mass scale. Morocco’s actions have also been an unprecedented challenge to the authority of the Security Council that established MINURSO’s mandate as a demonstration of the international community’s commitment to achieve a resolution to the conflict, thereby making the Council the only legal authority for the deployment or closure of a UN peacekeeping operation under the terms of Chapters VI and VII of the UN Charter.
On 29 April 2016, the UN Security Council adopted resolution 2285 on Western Sahara with 10 votes in favor, 2 against (Venezuela and Uruguay) and 3 abstentions (Angola, New Zealand and Russia). The fact that the resolution was voted on for the first time in fifteen years signaled that it was no longer ‘business as usual’ in the Council on Western Sahara. And Russia’s abstention was significant as it was the first time that a P5 member and member of the Group of Friends broke with the consensus.
The resolution emphasizes the ‘urgent’ need for MINURSO to return to ‘full functionality’ and requests that the Secretary-General brief the Council within 90 days on whether this had happened, and if not, the Council will consider how to achieve this. The resolution also stresses the need for the parties to continue the negotiation process through UN sponsored talks, including that a commitment be shown for a fifth round of negotiations. Still, the resolution is yet to be implemented.