Judicial Recognition of Western Sahara

Guest Columnist By Femi falana

Western Sahara is a territory in North-West Africa which was colonised by the Kingdom of Spain at the end of the 19th century. Based on a demand by Morocco it was added  to the list of non-self-governing territories by the United Nations in 1963  pursuant to Article 73 of the United Nations Charter. In 1965, the United Nations General Assembly adopted a resolution calling on Spain to decolonise the territory.

A year later, the UN asked Spain to conduct a referendum on self-determination in the territory. As the resolution was ignored by Spain the Polisario Front began armed struggle for independece in 1973. Even though colonial rule ended in 1975, Spain illegally handed over  the administrative control of the territory to Mauritania  and Morocco despite the Advisory Opinion of the International Court of Justice which had recognised the right of the Saharawi people to self – determination.

However, the  annexation led to a war between both countries and the Saharawi national liberation movement, the Polisario Front, which had proclaimed the Saharawi Arab Democratic Republic (SADR).  Although  Mauritania withdrew from the territory in 1979 the war of independence continued between Morocco and the SADR backed by Algeria. After 15 years of the armed conflict both Morocco and the Polisario Front reached a ceasefire agreement on the ground that Morocco would organise a referendum for self determination in Western Sahara. Notwithstanding that the 1991 agreement was brokered by the United Nations, Morocco has refused to organise the referendum. With the connivance of leading western governments notably United States and France (the major arms suppliers to Morocco) Rabat  has defied all resolutions of the United Nations for the peaceful resolution of the struggle of the Saharawi people for self – determination.

Thus, Morocco has continued to occupy the largest part of the territory including the major towns and rich natural resources mainly phosphates, agriculture and fishery products. A smaller part of the territory is however controlled by the Polisario Front whose legitimacy has been recognised by the United Nations and the African Union. The mineral resources of the territory which are illegally exploited by Morocco are exported to the United States and the European Union member states. In 2000, Morocco and the EU entered into a trade agreement which was reviewed and consolidated by the 2012 Morocco-EU Liberalisation Agreement to facilitate the exploitation of agricultural products, processed agricultural products as well as fish and fishery products.

However, the legal validity of the both Agreements was challenged by the Polisario Front in a suit filed at the European Court of Human Rights on November 19, 2012. Essentially the case alleged that the Agreements violated  the human right of the Saharawi people  to self – udetermination. In a historic judgment delivered by the Court on December 10, 2015 the Agreements were annulled on the grounds that the term “the territory of the Kingdom of Morocco” therein was understood to encompass Western Sahara. It was further held that the Agreements had failed to take cognisance of the fact  that the exploitation of the natural resources of the territory of Western Sahara under the occupation and control of Morocco was likely to be to the detriment of its inhabitants and to infringe their fundamental rights.

Not surprisingly, Morocco reacted to the judgment by temporarily  freezing diplomatic relations with the EU. Equally dissatisfied with the judgment the European Council and Commission and 5 countries ( France, Germany, Spain, Belgium and Portugal) challenged it on appeal by seeking for its annulment at the Court of Justice. Thus, following an expidited procedure adopted at the request of the European Council the Court took arguments from the parties. In its ruling of December 21, 2016 the Court upheld the appeal.

However, the Court categorically stated that in view of the separate and distinct status guaranteed to the territory  of Western Sahara under the Charter of the United Nations and the principle of self-determination of peoples, it cannot be said that the term ‘’territory of the Kingdom of Morocco’’ which defines the territorial scope of the Association and Liberalisation Agreements , encompass Western Sahara and, therefore  that those agreements are applicable to that territory.

Furthermore and more significantly, the Court held that in view of the Advisory Opinion on Western Sahara handed down in 1975 by the International Court of Justice at the request of the United Nations General Assembly the people of that territory must be regarded as a third party which may be affected by the implementation of the Liberalisation Agreement. In the present case, it is not apparent that that Saharawi people consented to the agreement being applied to Western Sahara . Having concluded that the Liberalisation Agreement does not apply to the territory of Western Sahara the Court set aside the judgment of the General Court on the ground that the Polisario Front is not concerned by the decision of the European Council to conclude that agreement.

The legal implicationof the judgment of the European Court of Human Rights is that all EU agreements and treaties  with Morocco cannot apply to the territory of Western Sahara. This is a major legal blow to the claim of Morocco over the occupation of the territory. Indeed, it is a judicial confirmation of Western Sahara as a separate territory distinct from the Kingdom of Morocco in line with the unimpeachable Advisory Opinion of the International Court of Justice of 1975.

In his reaction to the epochal judgment of the European Court, Mr. Mohammed Sidati, the Polisario Front’s envoy to Europe has correctly asserted that “EU complicity in the exploitation of Western Sahara’s natural resources is a violation of international law, an obstacle to the peaceful resolution to the conflict, and a stain on the EU’s reputation”.

Morocco and the EU members are totally shocked  by  the decision of the European Court of Human Rights on the legal status of Western Sahara. The shock was captured by Morocco’s foreign minister, Salaheddine Mezouar and the EU’s high representative for foreign affairs, Federica Mogherini who responded  jointly by  saying that “Both sides will examine all possible implications of the court’s judgment and will work together on any  issue relating to its application”.

Unlike the Advisory Opinion of the International Court of Justice which has been disregarded by Morocco and her allies the judgment of the European Court is binding on all the parties. Aside  the parties to the dispute the judgment has implications for other trading partners of Morocco.  Thus; by the judgment any agreement between Morocco and other countries or companies  which covers the occupied territory is liable to be challenged by the Polisario Front in municipal and international tribunals.

In view of the financial risk of investing in Western Sahara with the approval of Morocco the Polisario Front has invited governments and corporate bodies involved to legalise their activities by  seeking  the consent of the representatives of the Saharawi people. The caveat emptor issued by the Polisario Front is a warning to the Government of Nigeria which is currently  negotiating a deal with Morocco for a natural gas pipeline that would pass through the territory of Western Sahara. To avoid unnecessary litigation arising from the proposed commercial agreement the Buhari administration is advised to include representatives of  the Polisario Front in the negotiations in line with the judgment of the European Court of Human Rights in the case of the Council of the European Union & Ors v Polisario Front.

Finally, Morocco which withdrew from the Organisation of African Unity in 1984 upon the admission of the SADR to the body  has applied to join the African Union. As a precondition for joining the continental body,  Morocco should be made to withdraw completely from the occupied territory of Western Sahara in line with the resolutions of the United Nations on the right of the Saharawi people to self-determination, the Advisory Opinion of the International Court of Justice of 1975 and the judgment of the European Court of Human Rights to the effect that Western Sahara is not part of the Kingdom of Morocco. In particular, the attention of Morocco should be drawn to one of  the principal objectives of the African Union to defend the sovereignty, territorial integrity and independence of the member states including Western Sahara.