To protect the people’s rights, the Sahrawi leadership needs to accept the autonomy plan proposed by Morocco.

In 1963, the United Nations General Assembly listed the Western Sahara, at the time a Spanish colony, as a non-self-governing territory. Spain, the administrator of the territory, was supposed to “develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions.” More than 50 years have passed since then, during which the Sahrawi leadership proclaimed the Sahrawi Arab Democratic Republic in 1976. Yet the people’s rights are still pending because Morocco, which occupied the territory from 1975 on, has resisted the Sahrawi political aspirations, namely their pursuit of independence. As a result, Morocco has exploited the resources in the Sahara while the Sahrawis lacked a political voice in the territory’s administration.

A key issue here is the self-determination of peoples, the watchword during the decolonization period. Self-determination outside of the colonial framework is contentious because it could be and has been interpreted by nationalist groups and other minorities as a right to secession. For this reason, this author addresses the situation in the Western Sahara within the colonial context since the rights in such a context are clear and uncontroversial. The rights in such a context are made up of a procedural right – a referendum resulting in independence, autonomy or integration – and a substantive right, which would include control over the resources in the territory. Although “colonialism” may evoke an image of imperial Europe exploiting other countries’ resources, colonialism is also applicable to this current issue.

To fully understand the situation, it is important recognize the basis of the Sahrawi claims for independence. Moreover, it is necessary to address the occupier’s methods for maintaining a favorable image of the occupation. Such means include legitimizing the occupation by alienating the independence movement – an example is Israel’s success in portraying the Palestinian Liberation Organization (PLO) as either terrorists or a wannabe government; encouraging third-party investment in the occupied territory; and maintaining a strong military relative to the occupied people. These methods can threaten a people’s right to self-determination. For the occupied people, this can result in a negotiated settlement that overlooks either the substantive or the procedural content of their rights or both.

To avoid the loss of all their rights, the Sahrawi leadership needs to compromise on the procedural component. This means being willing to have “independence” taken off the referendum and accept the Moroccan initiative allowing for Sahrawi autonomy. In practical terms, autonomy means more self-government for the Sahrawis short of having the economic, political and legal decision-making authority a fully independent state would have. If the Sahrawi leadership does not accept the initiative, they could risk the continued exploitation of their mineral resources by Morocco. They could also risk becoming an increasingly marginalized group recognized by a dwindling number of states, with a significant refugee situation on their hands.

The Right To Self-Determination

A colonized people’s pursuit of self-determination can rely on a combination of nonviolent resistance, a war of independence or assimilation of the occupiers with the local population. It is important to consider whether the colonialists are only exploiting resources in the territory, or whether they regard the territory as living space in which their own people can settle. This distinction becomes clear when comparing French Algeria with British India; the latter is an example of orthodox colonialism which mainly exploited resources and cheap labor, while the former also used the colonized territory as living space for its own people.

With the practice of granting independence to colonized territories, coupled with a sense of legal obligation (opinio juris), self-determination emerged as customary international law.

In the case of the Western Sahara, the incentives for Moroccans to work and settle there are strong. According to the US State Department, Moroccans working in the Western Sahara earn 85% more than their counterparts outside the territory. They are not expected to pay an income or value-added tax, and receive subsidies on many goods and services. In response to this Moroccan settlement policy, the Sahrawis pursued violent resistance as the Algerians did against the French, hoping the settlers, which today dwarf the native Sahrawi population in the Western Sahara by three to one, would flee back to Morocco proper. However, this violent resistance failed, and now the Sahrawi leadership and a sizable portion of the Sahrawi people are living in refugee camps in Algeria.

The Sahrawi demands are nothing unexpected – merely the self-determination of their people. The self-determination of peoples is clearly recognized as a principle in the United Nations (UN) Charter. There is debate on whether the original scope of self-determination in article 1(2) of the charter is legally binding, or whether it is “a statement of a political aim [which does not necessarily] create legal obligations.” Malcolm N. Shaw explains: “It is disputed whether the reference to the principle in these very general terms was sufficient to entail its recognition as a binding right, but the majority view is against this.” Regardless of the principle’s original scope in the charter self-determination today has evolved as a right of peoples, as opposed to a general principle, in both treaty and customary law.

The emergence of self-determination as a right is attributable to the UN Charter itself, which, according to Antonio Cassese, constituted the “driving force behind the emergence of growing opinion about the importance of self-determination.” Such an opinion was initially expressed through UN General Assembly (UNGA) declarations. UNGA resolution 1514, entitled “Declaration on the Granting of Independence to Colonial Countries and Peoples,” stated that “All peoples have a right to self-determination,” and that by virtue of this right, peoples are entitled to “freely determine their political status.”

Only a day after the passing of resolution 1514, the General Assembly passed resolution 1541, which identified non-self-governing territories as having attained full self-government if they emerged as a sovereign independent state, became associated with an independent state or were integrated into an independent state. Two treaties were subsequently formulated by the UN Commission on Human Rights, which referred to the self-determination of peoples as a right. With the practice of granting independence to colonized territories, coupled with a sense of legal obligation (opinio juris), self-determination emerged as customary international law.

In addition, self-determination encompasses a right to the territory’s material resources. This point was highlighted in one International Court of Justice (ICJ) case. In response to the Australian contention that Australian exploitation of oil resources in the Timor Gap did not impede the East Timorese from their procedural rights, Judge Rosalyn Higgins characterized this argument as “legal deconstructionism” that would “empty the right of self-determination of any meaningful content.”

The Sahrawis

In 1991, a ceasefire was reached between the Sahrawi leadership, known as the Popular Front for the Liberation of Saguia el-Hamraand Río de Oro (Polisario), and Morocco. After 16 years of fighting, the two sides agreed upon a settlement plan for the self-determination of the Sahrawis. The Polisario only exercised effective control over one-third of the territory they claimed when the ceasefire was reached. Despite the settlement plan which agreed on the holding of a referendum, the Moroccan government and the Polisario have been unable to agree on who can vote in the referendum determining the status of the Western Sahara as either autonomous, independent or integrated with Morocco. While Morocco wants to include the non-Sahrawis in the territory, the Polisario wants to include only the 74,000 Sahrawis and their descendants.

Essentially, the Sahrawis need to waive part of their procedural rights – a referendum entailing independence, autonomy or integration – in exchange for securing their substantive rights – the administration of the territory and their resources.

Furthermore, the two parties have been unable to agree on the nature of self-determination. While King Hassan II of Morocco appeared to be receptive to the notion of self-determination entailing autonomy, integration or independence of the Sahrawis, the independence option died with him in 1999. His successor, King Mohammed VI, rejected independence as a possibility and replaced it with the less explicit “self-determination.” This was followed by the Moroccan Initiative in the Western Sahara, which was prepared by the Royal Advisory Council for Saharan Affairs (CORCAS) in 2006, and is essentially an autonomy plan for the Sahrawis. According to the initiative:

“The autonomous government would control local administration, local police, education, cultural development, economic development, regional planning, tourism, investment, trade, public works and transportation, housing, health, sports and social welfare. It would have taxing authorities to support these functions and would continue to receive funding from the central budget as well. It would be able to establish foreign regional trade relations offices and would have consultative rights on other sovereign foreign agreements affecting the region.”

The Polisario, however, rejected the initiative and has maintained that independence must be included as an option on the referendum. Today the Polisario remain the administrators of several refugee camps located in Algeria. According to the UN Refugee Agency (UNHCR), some 90,000 Sahrawis live in these refugee camps. By rejecting the autonomy plan, the Polisario would concede the immediate return of those refugees to their land and the administration of the territory. They would concede the revenue from exploited mineral and fishery resources to Morocco.

So the question here is whether the Polisario should reconsider their situation and agree to the autonomy plan. As of now, there are several reasons why they should accept it:

(1)   The fighting has ended, and with the building of the sand berm and a desert laden with landmines, it is difficult to think of a scenario similar to French Algeria. Instead, the model of South Africa is more feasible. Whereas Algerians pursued the expulsion of the settlers, South Africans sought a one-state solution that included the settlers.

(2)   Unlike the situation in Palestine, in which Israel is seeking to maintain a “Jewish state,” Morocco must accommodate different peoples within its borders. In fact, if there were a case for ethnic preferences, it would be for the Arabic language and peoples over the majority Amazigh, which is due to the king’s own background. This means that the identity of the citizen that Morocco would want the people to have is relatively inclusive of the Sahrawis and their linguistic preference.

(3)   Following the precedent of a culturally heterogeneous state, Morocco has encouraged the Sahrawi refugees to return.

(4)   With the immediate return and development of the autonomous region, the Sahrawis can ensure that their identity is preserved. This means preventing the assimilation of the Sahrawi people into the broader Moroccan identity.

Essentially, the Sahrawis need to waive part of their procedural rights – a referendum entailing independence, autonomy or integration – in exchange for securing their substantive rights – the administration of the territory and their resources.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.
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