As Western Saharan independence activist - Aminatou Haidar - is finally allowed to return home, the international community shifts its focus away from this disputed area. Her 32 day hungerstrike campaign brought renewed attention to a 34-year conflict in which the indigenous Saharawi population claims something Morocco refuses to recognize: the right to self-determination. Most importantly, it culminated in a Spanish appeal to the UN Secretary General to act as mediator. So what are the legal possibilities in this political deadlock?

A former Spanish colony, Western Sahara has been listed as a non-self governing territory under United Nations law since the 1960s. It gained independence in 1975 but was claimed by Morocco on the basis of pre – colonial ties.
 

Based on Chapter XI of the 1945 UN Charter, the inhabitants of a ‘non-self governing territory’ have the right to determine their own political future. A UN Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514, 1960) reinstates that right, while a UN ‘special committee’ is established to ensure its application. The 1960 Resolution 1541 also provides a list of three possible options of governance for people of such territories: independence, free association or integration.
 

The UN resolutions are premised on the assumption that the right to self-determination is a current, or emerging, “peremptory” norm of international law (jus cogens), from which no derogation is possible.

Pre-colonial ties

Morocco, on the other hand, views its territorial claim to Western Sahara as grounded in the International Court of Justice’s Advisory Opinion of 1975 in which the Moroccan government requested the Court to determine the existence of earlier, pre-colonial ties with the territory and its inhabitants. While the court did not dispute the presence of certain religious and tribal ties between Morocco and the Saharawis, it nevertheless ruled in favour of the indigenous people’s right to self-determination, as a former colony of a Western power.
 

Dr Pedro Leite is a legal expert and Secretary to the International Platform for Jurists (Leiden). He argues that, legally speaking, any ties between the two territories are “completely irrelevant, and the ICJ was very clear about that”. In his view, the operative part of the Advisory Opinion fell on the term “some”, as regards “some legal ties between some of the tribes and the Sultanate of Morocco”. However, Leite says, Morocco “didn’t read the word “some”; they said there are legal ties with the tribes of Saharawis and the Sultanate of Morocco”.

'Minurso'

The dispute has been further aggravated by the growing conflict between Morocco and the Polisario – a guerrilla organisation fighting for Saharawi independence and funded by Algeria. In 1976, they proclaimed the Sahrawi Arab Democratic Republic, and frictions continued until the UN called for a ceasefire in 1991. Since then, the “MINURSO”, a UN mission established by the Security Council, provides for an open referendum in which the Saharawis could choose their own political outcome. This could, Leite says, include the option of partial or full integration with Morocco but it would have to be up to the residents of
Western Sahara, including its Moroccan population.
 

Although Morocco has proposed the option of “Sahara Autonomous Region” as a way of resolving the dispute, he argues that this wouldn’t be adequate: “It is completely illegal to have autonomy as the only option for the Saharawis”. Based on the territory’s colonial past, it is “a blatant denial of the right to self determination”.
 

How does presently Morocco view the option of an open referendum? At this time, the Moroccan government has refused to comment on this issue.