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AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
LEGAL OPINION
ON THE LEGALITY IN THE CONTEXT OF INTERNATIONAL LAW,
INCLUDING THE RELEVANT UNITED NATIONS RESOLUTIONS AND
OAU/AU DECISIONS, OF ACTIONS ALLEGEDLY TAKEN BY THE
MOROCCAN AUTHORITIES OR ANY OTHER STATE, GROUP OF STATES,
FOREIGN COMPANIES OR ANY OTHER ENTITY IN THE EXPLORATION
AND/OR EXPLOITATION OF RENEWABLE AND NON-RENEWABLE
NATURAL RESOURCES OR ANY OTHER ECONOMIC ACTIVITY IN
WESTERN SAHARA
A.
1.
INTRODUCTION
The Government of the Saharawi Arab Democratic Republic (SADR), through
a letter dated 25 February 2015, addressed to the Chairperson of the
Commission, Dr. Nkosazana Dlamini Zuma, requesting a legal opinion from the
Office of the Legal Counsel (OLC) on “the Illegality of the exploitation of the
natural resources of Western Sahara by the Kingdom of Morocco, the
occupying force, and any other entity, company or group.” The issue, as
submitted, already presupposed the illegality of the exploitation of natural
resources by the Kingdom of Morocco.
The Permanent Mission of Saharawi Republic in a note verbale under reference
number 44/2015 dated 3 April 2015, however, modified the issue to “the
legality in the context of international law, including the relevant UN
resolutions and OUA/AU decisions, of actions allegedly taken by the Moroccan
authorities or any other State, group of States, foreign companies or any other
entity consisting in the exploration and/or exploitation of renewable and non-
renewable natural resources or any other economic activities in Western
Sahara.”
It should be recalled that in February 2002, the UN Under-Secretary –General
for Legal Affairs and Legal Counsel delivered a legal opinion to the United
Nations Security Council on almost an identical issue, “the legality in the
context of international law, including relevant resolutions of the Security
Council and the General Assembly of the United Nations, and agreements
concerning Western Sahara of actions allegedly taken by the Moroccan
authorities consisting in the offering and signing of contracts with foreign
companies for the exploration of mineral resources in Western Sahara.”
1
2.
3.
1
The European Parliament Legal Service has also delivered legal opinions in respect of the Fisheries
Partnership Agreement between the European Community and the Kingdom of Morocco in 2006 and
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4.
Since the issues concerning the Saharawi Republic are multidimensional, for
purposes of this legal opinion, the OLC will restrict itself to the issue as
contained in the note verbale from the Permanent Mission of SADR dated 3
April 2015.
FACTUAL BACKGROUND
2
The Territory of Western Sahara became a Spanish colony in 1884. During the
time when the territory was a colony of Spain, it was known as Spanish Sahara.
B.
5.
6.
The territory borders Morocco in the North, Mauritania in the South and East,
Algeria in the East and the Atlantic Ocean in the West.
In 1963, Western Sahara was included on the list of non-self-governing
territories under Article 73 of the UN Charter and Spain was the administering
power.
3
The General Assembly had demanded that Spain should undertake
immediate steps to guarantee the exercise of self-determination by the people of
Western Sahara. This underscored the right to a referendum on self-
determination under UN General Assembly Resolution 1514 (XV) adopted in
1960, The General Assembly has always maintained that the people of Western
Sahara are entitled to the right to self-determination.
The International Court of Justice (ICJ) issued an advisory opinion on the status
of Western Sahara on 16 October 1975 at the request of the UN General
Assembly. In the opinion, the ICJ dismissed the sovereignty claims by Morocco
and Mauritania. After the ICJ delivered its opinion, Spain entered into a secret
agreement with Morocco and Mauritania (Madrid Accords) which purported to
authorize Spain’s withdrawal from the Territory of Western Sahara and permit
the occupation by Morocco and Mauritania.
On 31 October 1975, Morocco invaded Western Sahara on the pretext of
claiming the territory, despite the ICJ’s advisory opinion on the issue, that
clearly stated that there were no legal ties between either Morocco or
Mauritania with the Western Sahara. In response to the ICJ Advisory Opinion,
King Hassan II of Morocco in November 1975 ordered a "Green March" of
over 350,000 Moroccans into Western Sahara, disregarding a formal call from
the Security Council to put an end forthwith to the declared march into Western
Sahara”
4
.
As a result of pressure, Spain negotiated a secret settlement on 14 November,
1975 with Morocco and Mauritania, under the Madrid Tripartite Accords, which
7.
8.
9.
10.
2009. The unofficial copies of the opinions are available on the website. See
http://www.arso.org/LegalopinionUE200206.pdf
accessed on 22/04/15 at 10.00;
http://www.fisheiswhere.eu/a140x1077
accessed on 22/04/15 at 11:23 and Report on Legal Issues
Involved in the Western Sahara Dispute: Use of Natural Resources available at
http://www.nycbar.org/pdf/report/uploads/20072089ReportonLegalIssuesInvolvedintheWesternSaharaDi
spute.pdf
accessed on 20/04/15 at 14:25
2
The facts generally have been gathered from a number of Reports of the Commission on Western
Sahara
3
UNGA Resolution 2072 (XX) of 17 December 1965
4
(UN Security Council Resolution 379 (1975)
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resulted in Spain’s withdrawal from what was then called the Spanish Sahara on
26 February 1976.
11.
Spain withdrew after it had notified the Secretary-General of the UN. This was
immediately followed by a unilateral proclamation of the Saharawi Arab
Democratic Republic (SADR) by the Polisario Front on 27 February 1976
filling the legal and administrative vacuum that Spain unilaterally created when
it withdrew from its colony without finishing the process of decolonization that
the UN entrusted it with.
Before Spain’s withdrawal as the administering power, the General Assembly
had demanded that Spain should undertake immediate steps to guarantee the
exercise of self-determination by the people of Western Sahara.
5
Following the Madrid Accords, Moroccan and Mauritanian armed forces
invaded Western Sahara. This invasion led to a war by Moroccan and
Mauritanian forces on the one hand against the Polisario Front, on the other.
The Polisario Front is a liberation movement fighting for the independence of
Western Sahara. Mauritania withdrew its forces in 1979 and renounced its
sovereignty claims. Mauritania also decided to recognize SADR as the
legitimate authority in Western Sahara.
6
The war between Morocco and the
Polisario Front continued until it reached a stalemate in 1988. Later that year,
the United Nations and the Organization of African Unity persuaded the parties
to agree to a cease-fire and a settlement plan. Under the settlement plan, the
issue of sovereignty over the Territory of Western Sahara would have to be
settled by a referendum.
The war stopped in 1991 and the UN Mission for the Referendum of Western
Sahara (MINURSO) was established by UN Security Council resolution 690 of
29 April 1991. The referendum was planned to take place within 6 months and
the Saharawi people were to choose between independence or integration with
Morocco. The referendum has not been held up to now.
THE STATUS OF THE WESTERN SAHARA/SADR
African Union
The SADR
7
became a Member State of the Organization of African Unity
(OAU) in 1982. It should be recalled that membership to the OAU was open to
any independent sovereign African state.
8
The admission of SADR to the
membership of OAU in 1982 signified that more than half of Member States of
the OAU recognized Western Sahara as an independent sovereign African
State.
9
It should also be recalled that one of the purposes of the OAU was to
eradicate all forms of colonialism from Africa.
10
Accordingly, the SADR is one
of the founders and a member of the African Union, the successor organization
to OAU.
12.
13.
14.
C.
i)
15.
5
6
UNGA Resolutions 2229 (XXI of 20 December 1966, and 2354 (XXII) of 19 December 1967
A/34/427-S/13503, Annex I and II, Official Record of the Security Council, Thirty-Fourth Year,
Supplement for July, August and September 1979.
7
SADR was proclaimed by the Polisario Front on 27 February, 1976
8
Article XXVIII (1) of the OAU Charter
9
Admission is based on decision by simple majority of Member States. See Article XXVIII (2)
10
Article II (1) (d) of the OAU Charter
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16.
Notwithstanding the membership of SADR to both OAU and AU, there is
recognition that the people of Western Sahara are not fully liberated. The SADR
controls only a part of Western Sahara
11
. To this end, both the OAU and AU
have undertaken efforts to conduct a referendum for self-determination of the
people of Western Sahara. A year after the admission of SADR as member of
the OAU, the Assembly of Heads of State and Government of the OAU urged
the Kingdom of Morocco and the Polisario Front “to undertake direct
negotiations with a view of bringing about a ceasefire to create the necessary
condition for a peaceful and fair referendum for self-determination of the people
of Western Sahara, a referendum without any administrative or military
constraints…”
12
The right of the people of Western Sahara to a referendum for
self-determination has been discussed regularly and reaffirmed by the Assembly
of the African Union.
13
It should be noted that in the plan of action adopted at the AU Special Session
on the Consideration and Resolution of Conflicts in Africa, held in Tripoli,
Libya in August 2009, the Assembly of the African Union resolved to support
the efforts of the UN to overcome the impasse on Western Sahara. The
Assembly also recalled relevant UN Security Council resolutions which called
for direct negotiations without preconditions and in good faith, which would
provide for the self determination of the people of Western Sahara in the
context of arrangements consistent with the principles and purposes of the
Charter of the UN
14
.
The debate on the referendum for the right to self-determination of the people of
Western Sahara reached its climax during the celebration of the 50
th
Anniversary of the African Union in May 2013. The Executive Council
reiterated the call to the two parties, namely, the Kingdom of Morocco and
Polisario Front, to undertake direct negotiations, with a view of achieving a just,
lasting and mutually acceptable political solution, which would provide for the
self-determination of the people of Western Sahara.
15
The Assembly of the
African Union also reiterated the call of the United Nations Security Council to
the parties.
16
The Peace and Security Council of the African Union at its 496
th
meeting held
in Addis Ababa, Ethiopia on 27 March 2015 recalled that the Western Sahara
remained an issue in the completion of the decolonization process of Africa and
urged the UN Security Council to take all necessary decisions to ensure
progress in search for a solution to the conflict in Western Sahara and appealed
for an enhanced and coordinated international action towards the early
17.
18.
19.
11
12
The rest is occupied by the Kingdom of Morocco
Resolution AHG/Res.104 (XIX) adopted in June, 1983.
13
See AU Special Session of the Assembly on the Consideration and Resolution of Conflicts, Tripoli,
Libya; Assembly/AU/Dec.559 (XXIV) adopted in January 2015; EX.CL/Dec.758 (XXII) adopted in
January 2013
14
Progress Report of the Chairperson of the Commission on the situation in Western Sahara
(EX.CL/788 (XXIII)-Rev-1
15
Paragraph 3 of EX.CL/Dec.773 (XXIII). The same call was repeated by the Assembly in
Assembly/AU/Dec.559 (XXIV).
16
Assembly/AU/Dec.559 (XXIV).
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organization of a referendum for the self-determination of Western Sahara, in
compliance with relevant OAU/AU decisions and UN resolutions.
17
20.
As can be seen from the above, the African Union has continued to call for a
referendum of self-determination of the people of Western Sahara within the
acknowledged principles of international law.
It should be noted that the African Union considers Western Sahara to be under
colonial occupation by Morocco.
18
The occupation is against the spirit of the
founding objectives and principles of both the OAU and the AU.
United Nations
The SADR is not a member of the UN.
As far back as 1963, the Territory of Western Sahara
19
was listed among Non-
Self-Governing Territories as recognized in the UN General Assembly
resolution 1514 (XV) of 14 December 1960 that contained the Declaration on
the Granting of Independence to Colonial Countries and Peoples. It should be
recalled that under Resolution 1514 (XV), the General Assembly, declared inter
alia, that all peoples have the right to self-determination, and that by virtue of
that right, they should freely determine their political status and freely pursue
their economic, social and cultural development.
20
In this regard, the right of the
people of Western Sahara to a referendum for self-determination has been
reaffirmed by both the General Assembly and the UN Security Council as well
as by the International Court of Justice.
21
Chapter XI of the UN Charter deals with Non-Self-Governing Territories.
Article 73 of the Charter provides that Member States of the UN which have or
assumed responsibilities for the administration of Non-Self-Governing
Territories must recognize the principle that the interests of the inhabitants of
these territories are paramount, and must accept as a sacred trust the obligation
to promote to the utmost, the well-being of the inhabitants of these territories. In
addition, Article 73 (e) requires the administering Power to transmit to the UN
Secretary General, statistical and other information of a technical nature relating
to economic, social and educational conditions in the Non-Self-Governing
Territory.
However, from the UN perspective, Western Sahara does not have any
administering power, as Spain had withdrawn from the territory on 26 February
1976.
22
21.
ii)
22.
23.
24.
25.
Paragraph 7 (i) and (ii) of Communique for the 496
th
PSC Meeting, PSC/PR/COMM/1. (CDXCVI)
18
SOLEMN DECLARATION ON THE50th ANNIVERSARY OF THE OAU/AU (
Assembly/AU/Decl.3.(XXI ) ,
a
dopted by the twenty first AU Summit held from 26-27 May 2013 in
Addis Ababa , Ethiopia
19
Then Spanish Sahara
20
Paragraph 2 of UNGA Resolution 1514 (XV)
21
See UNGA Resolution 2983 (XXVII) on the Question of Spanish Sahara adopted on 14 December
1972; UNGA resolution 61/123 adopted on 14 December 2006 on Economic and other activities which
affect the interests of the peoples of the Non-Self-Governing Territories; UNSC Resolution 1979 (2011)
adopted on 27 April 2011; ICJ Advisory Opinion on Western Sahara of 16 October 1975
22
http://www.un.org/en/decolonization/nonselfgovterritories.shtml
accessed on 20/4/15 at 10:00 hrs. It
is indicated that on 26 February 1976, Spain informed the Secretary-General that as of that date it had
terminated its presence in the Territory of the Sahara and deemed it necessary to place on record that
17
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26.
In the implementation of Article 73 of the Charter, the UN General Assembly
elaborated some principles that must be adhered to, namely that:
a)
All States should comply with the resolutions of the General Assembly on
the activities of foreign economic and financial interests and
to refrain
from helping to perpetuate the colonial situation in the Territory by means
of investments (emphasis added).
23
States must therefore avoid any
economic activity that adversely affects the interests of the peoples of the
Non-Self-Governing Territories.
24
Accordingly, investments that may
constitute an obstacle to the liberation of a territory should not be
promoted by States.
25
The territory of a colony or other Non-Self-Governing Territory, has under
the UN Charter, a status separate and distinct from the territory of the state
administering it and that the separate and distinct status shall exist until
the right to self-determination has been fully exercised.
26
Sovereignty over natural resources is a basic constituent of the right to
self-determination.
27
Natural resources are a heritage of the peoples of the non-self- governing
territories and that exploitation and plundering of the marine and other
natural resources of Non-Self-Governing Territories, in violation of the
relevant resolutions of the UN , is a threat to the integrity and prosperity of
the Non-Self-Governing Territories.
28
b)
c)
d)
27.
In addition, Resolution III of the UN Conference on the Law of the Sea, took
into account the provisions of the Charter of the UN, in particular Article 73 and
declared that:
Spain considered itself thenceforth exempt from any responsibility of any international nature in
connection with the administration of the Territory, in view of the cessation of its participation in the
temporary administration established for the Territory. In 1990, the General Assembly reaffirmed that the
question of Western Sahara was a question of decolonization which remained to be completed by the
people of Western Sahara.
23
UNGA Resolution 2983 (XXVII) on the Question of Western Sahara, paragraph 6
24
UNGA resolution 61/123 adopted on 14 December 2006 on Economic and other activities which affect
the interests of the peoples of the Non-Self-Governing Territories
25
Article 16 (2) of the Charter of Economic Rights and Duties of States
26
UNGA Resolution 2625 (XXV) on the Declaration on Principles of International Relations and
Cooperation among States in accordance with the Charter of the United Nations, paragraph on the
principle of equal rights and self-determination of peoples
27
UNGA Resolution 1314 (XIII) on the Recommendations concerning International respect for the right
of peoples and nations to self-determination; UNGA Resolution 1803 (XVII) on the Permanent
Sovereignty over natural resources, preambular paragraph 2; UNGA48/46 (1993) on the Activities of
foreign and other economic interests which impede the implementation of the Declaration on the
Granting of Independence of Colonial Countries and Peoples in Territories under Colonial domination;
UNGA resolution 49/40 (1994) on the Activities of foreign and other economic interests which impede
the implementation of the Declaration on the Granting of Independence of Colonial Countries and
Peoples in Territories under Colonial domination
28
UNGA resolution 61/123 adopted on 14 December 2006 on Economic and other activities which affect
the interests of the peoples of the Non-Self-Governing Territories, paragraph 7; UNGA resolution 48/46
(1993); UNGA resolution 49/40 (1994)
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In the case of a territory whose people have not attained full
independence or other self-governing status recognized by the
United Nations, or a territory under colonial domination,
provisions concerning rights and interests under the Convention
shall be implemented for the benefit of the people of the territory
with a view to promoting their well-being and development
(emphasis added)
29
D.
28.
MOROCCO AND THE STATUS OF WESTERN SAHARA
Despite the fact that it occupies a large part of the Territory of Western Sahara,
Morocco has never acquired the status of an administering Power of the
territory in terms of Article 73 of the UN Charter. The UN list of non-self-
governing territories confirms that after the withdrawal and abandonment of
responsibilities by Spain on 26 February 1976, Western Sahara has not had any
other administering power.
30
Morocco has also never complied or purported to
comply with the requirements of Article 73 of the UN Charter, in particular the
transmission of statistical and other information.
With regard to Morocco’s claims of sovereignty over the Territory of Western
Sahara. It should be recalled that on 16 October 1975, the International Court of
Justice (ICJ) issued an Advisory Opinion denying the claims of Morocco and
Mauritania and affirming the right of the Saharawis to self-determination under
international law. One of the issues on which the Court was requested to
provide an Advisory Opinion by the UN General Assembly was the legal ties
between Western Sahara and both Morocco and Mauritania.
31
The ICJ found
that both Morocco and Mauritania never displayed any effective and exclusive
activity in Western Sahara.
32
Both countries therefore failed to establish any tie
to territorial sovereignty over the Territory of Western Sahara. The Court
concluded that it had “not found legal ties of such a nature as might affect the
application of resolution 1514 (XV) in the decolonization of Western Sahara
and, in particular, of the principle of self-determination through the free and
genuine expression of the will of the people of the Territory.”
33
Accordingly,
the UN Security Council called upon Morocco to withdraw from Western
Sahara when
34
it occupied the Territory on 31
st
October 1975.
It should be noted, as indicated by the UN Legal Counsel in his opinion to the
Security Council
35
, that “the Madrid Agreement did not transfer sovereignty
over the Territory, nor confer upon any of the signatories the status of an
administering power, a status which Spain alone could not have unilaterally
transferred”.
In its resolution of 28 April 2015, the UN Security Council called upon the
parties “to continue negotiations under the auspices of the UN Secretary-
General without preconditions and in good faith, with a view to achieving a just,
29.
30.
31.
29
http://www.un.org/depts/los/convention_agreements/texts/final_act_eng.pdf
accessed on 24/04/15 at
15:36
30 30
http://www.un.org/en/decolonization/nonselfgovterritories.shtml
accessed on 20/4/15 at 10:00 hrs
31
UNGA Resolution 3292 (XXIX, UN Doc. A /9631 (1974)
32
ICJ opinion at 49 and 68
33
ICJ opinion at 60
34
UN Security Council Resolution 379 (1975 )
35
Paragraph 6 of the Legal Opinion
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lasting, and mutually acceptable political solution, which will provide for the
self-determination of the people of the Western Sahara in the context of
arrangements consistent with the principles and purposes of the Charter of the
United Nations…”
36
32.
It should be noted that the issue of Western Sahara is dealt with by the Fourth
Committee of the UN General Assembly, which addresses issues relating to
decolonization.
RELEVANT INSTRUMENTS ON THE ISSUE OF EXPLORATION OR
EXPLOITATION OF NATURAL RESOURCES FROM WESTERN
SAHARA
International and Regional Instruments
Several international and regional instruments have recognized the right of
peoples to self-determination and the right of peoples to permanent sovereignty
over their natural resources. These include the following :
Convention IV respecting the Laws and Customs of War on Land and its
Annex, the Hague Convention of 1907:
Under the Convention and other rules
of international humanitarian law, the occupying Power may not change the
legal, institutional and political status of the occupied territory. This is because
occupation is only a temporary status and the occupying Power should not
introduce permanent changes in the occupied territory. The occupying power,
may however, take measures to restore and ensure public order and safety in the
occupied territory.
37
. , Article 47 of the Convention also formally forbids
pillage.
It should be noted that the UN General Assembly characterized Morocco as the
occupying Power in Western Sahara in 1979 and 1980.
38
However, Morocco
denies the applicability of such law as it considers Western Sahara under its
own sovereignty even though this claim had been dismissed by the ICJ.
The 4
th
Geneva Convention of 1949:
Article 33 of the Convention prohibits
pillage of natural resources.
The two International Covenants on Civil and Political Rights
and
on
Economic, Social and Cultural of 1966 (entered into force in 1976):
Article
1 of both Covenants provides that all peoples have a right to self-determination
and to freely determine their political status and to freely pursue their economic,
social and cultural development. In addition, the Article provides that all
peoples also have a right to freely dispose of their natural wealth.
39
Accordingly, States Parties to the Covenant, including those having
responsibility for the administration of Non-Self-Governing and Trust
Territories, must promote the realization of the right of self-determination and
E.
i)
33.
34.
35.
36.
37.
36
37
UNSC Resolution 2218 (2015)
Article 43 of the IV Hague Convention
39
The same is contained in Article 1 of the International Covenant on Economic, Social and Cultural
Rights
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respect that right, in conformity with the provisions of the Charter of the United
Nations
40
38.
UN Charter of Economic Rights and Duties of States of 1974:
Article 16 (2)
provides
that “No state has the right to promote or encourage investments that
may constitute an obstacle to the liberation of a territory occupied by force”
The African Charter on Human and Peoples’ Rights of 1981:
Article 20 of
the African Charter on Human and Peoples’ Rights provides that:
All peoples shall have the right to existence. They shall have the
unquestionable and inalienable right to self-determination.
They shall freely determine their political status and shall
pursue their economic and social development according to the
policy they have freely chosen.
40.
Article 21 provides that all peoples shall freely dispose of their wealth and
natural resources and that in case of spoliation, the dispossessed people shall
have the right to the lawful recovery of their property as well as to an adequate
compensation
UN Convention on the Law of the Sea of 1982:
While Western Sahara is not a
Party to the UN Convention on the Law of the Sea, Resolution III of the UN
Conference on the Law of the Sea declared that “in the case of territory whose
people have not attained full independence or other self-governing status
recognized by the United Nations, or a territory under colonial domination,
provisions concerning rights and obligations under the Convention shall be
implemented for the benefit of the people of the territory…”
The case law of the International Court of Justice:
In the case of Democratic Republic of Congo (DRC) v Uganda ( Armed
Activities on the Territory of the Congo),
the ICJ dealt with the question of
natural resource exploitation and made reference to Articles 43and 47 of the
Hague Convention and Article 33 of the 4
th
Geneva convention of 1949 relating
to the prohibition of pillage. The ICJ also observed that both DRC and Uganda
are both Parties to the African Charter on Human and Peoples’ Rights. The
Court then referred to Article 21 (2) of the African Charter which provides that
“in case of spoliation the dispossessed people shall have the right to the law full
recovery of its property as well as to an adequate compensation”. The Court
concluded that the occupying Power is internationally responsible for acts of
looting, plundering, and exploitation of natural resources in the occupied
territories.
There were other two cases in which it was argued that the principle of
permanent sovereignty over natural resources was violated but the ICJ never
issued any judgment on the merits.
41
39.
41.
ii)
42.
43.
40
Article 1 (3) of the International Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights
41
In the case of East Timor v Portugal, the Court concluded that it lacked jurisdiction while in the Nauru
Phosphate Case, the Parties reached a settlement following a judgment on preliminary objections.
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F.
LEGAL OPINION BY THE UN UNDER-SECRETARY FOR LEGAL
AFFAIRS AND LEGAL COUNCIL, 12 FEBRUARY 2002
As already indicated in paragraph 3 of this opinion, the UN Under-Secretary for
Legal Affairs and Legal Counsel delivered a legal opinion at the request of the
UN Security Council. The request was made on 13 November, 2001 and the
issue that he was asked to address was “the legality in the context of
international law, including relevant resolutions of the Security Council and the
General Assembly of the United Nations, and agreements concerning Western
Sahara of actions allegedly taken by the Moroccan authorities consisting in the
offering and signing of contracts with foreign companies for the exploration of
mineral resources in Western Sahara.”
42
The UN Legal Counsel after examining Article 73 of the UN Charter, the
resolutions of the UN General Assembly and practices States noted that “while
the legal nature of the core principle of permanent sovereignty over natural
resources, as a corollary to the principle of territorial sovereignty or the right to
self-determination, is indisputably part of customary international law, its exact
legal scope and implications are still debatable”
43
The Legal Counsel then analyzed the issue of mineral resource exploitation by
analogy and concluded that mineral resources exploitation in Non-Self-
Governing Territories is not illegal per se, but illegal if it is conducted in
disregard of the needs and interests of the people of that territory.
44
Regrettably,
under this approach, the UN Legal Counsel did not consider the question of
whether Morocco should be considered as an occupying or administering Power
of Western Sahara under provisions of the UN Charter. The UN Legal Counsel
also did not consider any UN Security Council and General Assembly
resolutions relating to the status or occupation of Morocco of Western Sahara.
Using the analogy of mineral resource activities conducted in Non-Self-
Governing Territories, the UN Legal Counsel concluded that:
…the contracts for oil reconnaissance and evaluation do not
entail exploitation or the physical removal of the mineral
resources, and no benefits have as of yet accrued. The
conclusion is, therefore, that while the specific contracts
which are the subject of the Security Council’s request are not
in themselves illegal,
if further exploitation and exploitation
activities were to proceed in disregard of the interests and
wishes of the people of Western Sahara, they would in violation
of the international law principles applicable to mineral
resource activities in Non-Self-Government Territories
(emphasis added)
44.
45.
46.
47.
48.
The former UN Legal Counsel has acknowledged in his latter presentations on
the matter that Morocco does not have the status of administering Power with
respect to Western Sahara. He has indicated that matters concerning the status
42
43
Paragraph 1 of the Legal Opinion
Paragraph 14 of the Legal Opinion
44
Paragraph 21 of the Legal Opinion.
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10
of Western Sahara are sensitive.
45
He has also decried statements by Morocco
claiming sovereignty over Western Sahara as being incompatible with UN
Security Council resolutions and the 1975 ICJ Advisory Opinion.
46
G.
49.
LEGAL ANALYSIS
The first issue to be addressed is whether Morocco can explore and exploit
renewable and non-renewable natural resources in the Territory of Western
Sahara.
The issue can only be fully addressed first by analyzing the status of Morocco
on Western Sahara. Western Sahara is a Non-Self-Governing Territory under
Article 73 of the UN Charter. As a Non-Self-Governing Territory, Western
Sahara retains its separate and distinct status until the right to self-determination
by its people has been fully exercised through a referendum. It should be
recalled that Morocco has never acquired the status of administering Power over
the Territory of Western Sahara in terms of Article 73 of the UN Charter.
In addition, the ICJ, in its Advisory Opinion of 1975 on Western Sahara
dismissed any sovereignty claims over Western Sahara by both Morocco and
Mauritania.
It should be recalled that as indicated in Article II (d) of the OAU Charter , one
of the objectives of the Organization of the African Unity was to rid the
continent from the vestiges of colonialism.
The UN, the African Union and all Member States of the UN have never
recognized the sovereignty claims of Morocco over Western Sahara nor
approved Morocco’s occupation of Western Sahara.
Regarding the political settlement on Western Sahara, the UN and the OAU/AU
have recognized the unquestionable and inalienable right of the people of
Western Sahara to a referendum for self-determination. Accordingly, both the
UN and the AU has called on the two parties to reach a solution which will
provide for the self-determination of the people of Western Sahara.
Furthermore, the UN, the AU and the ICJ have recognized the permanent
sovereignty of the people of Western Sahara over their natural resources. The
natural resources of Western Sahara are owned by the people of Western
Sahara. The natural resources of Western Sahara forms part of the heritage of
the people of Western Sahara.
The right of Self-determination and the right of people and its sovereignty over
their natural resources are peremptory norms ( Jus Cogens) and Erga Omnes
rights under international law as defined in article 53 of The Vienna Convention
on the Law of Treaties of 1969
47
, and as States cannot derogate from these
norms.
50.
51.
52.
53.
54.
55.
56.
45
See the Legality of exploring and exploiting natural resources in Western Sahara, paper presented by
Ambassador Hans Corell, former UN Legal Counsel
http://www.unisa.ac.za/contents/faculties/law/docs/14corell.pdf
accessed on 27 April 2015 at 07:55
46
See
http://www.judicialmonitor.org/current/specialcommentary.html
accessed on 24/04/15 at 14:00
47
“ …a peremptory norm of general international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which no derogation is permitted and which
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57.
Accordingly, Morocco has no legal right under the UN Charter and international
law to occupy or govern the Territory of Western Sahara. It should be recalled
that the UN Security Council called upon Morocco to withdraw from the
Territory of Western Sahara after it had occupied the territory soon after the
ICJ’s Advisory Opinion. In this regard, Morocco has no right to explore and
exploit any natural resources, renewable or non-renewable located in the
occupied territories of Western Sahara or to enter into agreements with third
parties concerning those resources.
In addition, any exploration and exploitation of the natural resources by
Morocco in Western Sahara seriously undermines the efforts and negotiations,
for a peaceful settlement, which have been ongoing for over four decades. The
exploration and exploitation also undermines both the UN and AU principles
and resolutions/decisions particularly the right of the people of Western Sahara
to self-determination through a referendum and the right over their natural
resources.
Member States of the UN are under an obligation from the UN Charter and
other UN Resolutions to refrain from helping to perpetuate or to legitimize the
colonial situation by means of investments or exploitation of natural resources
in the Non-Self-Governing Territory.
In view of the foregoing, any exploration and exploitation of natural resources
by Morocco , by any other State, group of States or foreign companies engaged
by it in Western Sahara is illegal as it violates international law and resolutions
of the UN and the AU. The exploitation of natural resources is also a threat to
the integrity and prosperity of the people of Western Sahara. In this regard,
foreign companies and any other State or group of States entering into
arrangements of agreements/contracts with Morocco for exploitation of natural
resources in Western Sahara are aiding and abetting an illegal situation and such
agreements/contracts are invalid.
48
Both the UN Security Council and the AU Peace and Security Council should
exercise their responsibilities and put pressure on Morocco to ensure that the
illegal exploration and exploitation of Western Sahara natural resources should
cease until a just, lasting solution is achieved by the parties through a
referendum for self-determination.
The second issue is under what circumstances should exploration or exploitation
of the natural resources of Western Sahara take place. It is only on this point
that we agree with the opinion of the former UN Legal Counsel which he
delivered to the UN Security Council. Western Sahara is a Non-Self-Governing
Territory and therefore all activities must be undertaken in strict compliance
with the provisions of Article 73 of the UN Charter as elaborated by various
resolutions of the UN Security Council and the General Assembly. An extra
margin of caution should be applied if the State concerned is not the
administering Power over the territory as the case of Morocco.
58.
59.
60.
61.
62.
can be modified only by a subsequent norm of general international law having the same character”
article 53 of the Vienna convention on the law of Treaties .
48
See UNSC Resolution 276 (1979) where the UN Security Council declared the continued presence of
South African in Namibia illegal and that consequently all acts taken by the Government of South Africa
were illegal and invalid
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63.
It should be recalled that the former Legal Counsel of the UN had concluded
thus:
…if further exploration and exploitation activities were to
proceed in disregard of the interests and wishes of the people
of Western Sahara, they would be in violation of the
international law principles applicable to mineral resource
activities in Non-Self-Governing Territories.
64.
We reiterate the fact that only the people of Western Sahara, as a Non-Self-
Governing Territory, have the right to permanent sovereignty over their natural
resources. To be legal, economic activities for exploration and exploitation of
natural resources in Western Sahara must benefit the people of Western Sahara
and respect their wishes. The people of Western Sahara and their legitimate
representatives (Polisario Front)
49
and Saharawi Republic Government should
not only be consulted but must directly be involved in any arrangement or
agreement regarding the exploitation or exploration of natural resources in in
their territory.
In this regard, if Morocco has entered into agreements for the exploration and
exploitation of natural resources in Western Sahara, the UN Security Council
should ensure that Morocco scrupulously accounts for such activities and
transfer all benefits that have accrued to the people of Western Sahara through a
transparent and independent mechanism supervised by the UN and AU. There
might be need for the UN and AU to appoint a Joint independent panel to verify
Morocco’s account.
CONCLUSIONS AND RECOMMENDATIONS
From the analysis above, it is evident that both the UN and AU must exercise
their responsibilities and put pressure on Morocco to comply with principles of
the UN and relevant international law on the right to self-determination and
exploitation of natural resources. The uncertainty that has marked the issue of
Western Sahara for over four decades cannot be allowed to continue.
Morocco is not an administering Power over Western Sahara’s territory under
Article 73 of the UN Charter. Morocco also does not have sovereignty over
Western Sahara; therefore Western Sahara question remains a pending issue of
decolonization and should therefore be resolved in accordance with UN General
Assembly resolution 1514 (XV) of 14 December 1960 on the Granting of
Independence to Colonial Countries and Peoples.
65.
H.
66.
67.
68.
Morocco has no right to explore and exploit any natural resources, renewable or
non-renewable located in the occupied territories of Western Sahara or to enter
into agreements /contracts with third parties concerning these resources.
Thus, AU through the African Union Commission and other relevant organs
must appeal to the UN Security Council to ensure that exploration and
69.
49
UNGA resolution 34/37 (1979)
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13
exploitation of natural resources in Western Sahara is undertaken under the
following framework:
a)
Morocco should not enter into any agreements with any other State, group
of States or foreign companies for exploration or exploitation of
renewable or non-renewable natural resources over the Territory of
Western Sahara. In this regard, Agreements entered into by Morocco
should be limited exclusively to its territory internationally recognized
under its sovereignty (which does not include Western Sahara);
Any exploration or exploitation of natural resources in Western Sahara
must be for the benefit of the people of Western Sahara and in accordance
with their wishes;
Accordingly, the people of Western Sahara and their legitimate
representatives
50
must not only be consulted but they must consent and
effectively participate in reaching any agreement that involves the
exploitation of natural resources in the Territory of Western Sahara.
Morocco and any other entity should be held accountable for
agreements/contracts entered into for exploration and/or exploitation of
renewable or non-renewable natural resources in the Territory of Western
Sahara and ensure that all benefits accrue to the people of Western Sahara
in accordance with international law. In this regard, the UN and AU
should consider appointing a joint independent panel to verify Morocco’s
account.
b)
c)
d)
70.
The UN Security Council and AU Peace and Security Council must also inform
all Member States of the UN and AU accordingly that any agreements/contracts
for the exploration and/or exploitation of renewable or non-renewable natural
resources over Western Sahara in disregard of the interests and wishes of the
people of Western Sahara without consultations with their legitimate
representatives violates principles of international law on self-determination and
exploitation of natural resources in Non-Self-Governing Territories, such
agreements/contracts are null and therefore illegal.
Since Saharawi republic (SADR) is a Member State of the African Union, all
Member States of the African Union must bear in mind the principles and
objectives of the African Union particularly on the need to defend the
sovereignty and territorial independence of SADR. The African Union concerns
on the illegal exploration and exploitation of natural resources in Western
Sahara must be transmitted by the African Union Commission and other
relevant AU organs and offices to other international, regional organizations
and partners. Therefore, the issue should be included in the agenda for
discussion with the partners involved in the illegal exploration and/or
exploitation of renewable or non-renewable natural resources in Western
Sahara.
Member States of the UN and their companies are under an obligation
according to international law, UN Charter and other UN resolutions to refrain
from helping in the perpetuation or legitimization of the colonial situation in
71.
72.
50
The Polisario Front. See UNGA Resolution 34/37/1979
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14
Western Sahara by means of investments or exploration and/or exploitation of
renewable or non-renewable natural resources and other economic activities in
the Non-Self-Governing Territory, and should therefore refrain from entering
into agreements/contracts with Morocco as the occupying Power in accordance
to the UNGA Resolution2711 of 1970.
73.
The UN, the AU and the ICJ have recognized the unalienable right of the
Saharawi people to self-determination and their permanent sovereignty over
their natural resources. The latter are owned by the people of Western Sahara
and form part of their heritage. UN Member States should make the necessary
political and legal arrangements and inform their companies about the legal
status of Western Sahara and the illegality of exploration and/or exploitation of
renewable or non-renewable natural resources and other economic activities in
this territory.
Any exploration and exploitation of renewable or non-renewable natural
resources by Morocco, any other State, group of States or foreign companies in
Western Sahara is contrary to the UN Charter, customary international law and
therefore illegal as it violates international law.
The exploitation and exploration of renewable or non-renewable natural
resources in the current situation (occupation) is also a threat to the integrity and
prosperity of the people of Western Sahara and to the peace and stability in the
North Africa. This is in accordance to the UNGA Resolution 2983(XXVII) of
1972.
The UN should assume its political and legal responsibilities and protect the
Sahrawi’s renewable or non-renewable natural resources as it did in East Timor
and Namibia till the people of the territory express their will and chose their
destiny through a free and fair referendum.
All States or foreign companies shall refrain from importing Saharawi’s
products or investing in the occupied areas of Western Sahara as these activities
are in violation of international law.
Any exploration and exploitation of natural resources by Morocco is illegal as it
violates international law and resolutions of the UN and the AU relating to the
right to self-determination and permanent sovereignty of the people of Western
Sahara over their natural resources. In addition, the exploration and exploitation
seriously undermines the efforts and negotiations for a just and peaceful
settlement over Western Sahara.
The African Union Commission should elaborate a comprehensive boycott
strategy that targets Morocco, any other State , group of States or foreign
Companies involved in the illegal exploration or exploitation of Western Sahara
renewable or non-renewable natural resources in compliance with the AUPSC
communiqué 496 adopted in 27 March 2015.
74.
75.
76.
77.
78.
79.
.