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International Law Western Sahara
by
Rosa Riquelme, Juan Soroeta

Introduction

Western Sahara is the only non-self-governing territory on the African continent still awaiting the completion of its process of decolonization and, as such, it has been listed by the committee established for the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples for half a century. While Spain and France were responsible for the delineation of land borders between 1900 and 1912, the delimitation of maritime boundaries is a pending issue. Spain began its colonization of the territory shortly before the Berlin Conference (1884–1885). Despite the fact that since 1961 it had been providing the UN General Assembly with the information required under Article 73 (e) of the UN Charter, it was only in 1974 that it assumed proper responsibility for its obligations as administering power, when it decided to organize a referendum on self-determination, to be held in the first half of 1975 under the auspices of the United Nations. As a result of a series of events, that plan was ultimately frustrated. The first such obstacle was the postponement of the referendum by the General Assembly, after it had decided to ask the International Court of Justice for an advisory opinion on the relationship between the Western Sahara and the Kingdom of Morocco. The court’s ruling confirmed the international status of Western Sahara as a non-self-governing territory. The second obstacle was the so-called Marcha Verde (Green March) on Sahara, organized by the King of Morocco, Hassan II, to demonstrate his intentions with regard to Western Sahara. Soon afterwards, Spain, Morocco, and Mauritania issued a declaration of principles on 14 November 1975 (also known as Madrid Agreements) whereby Spain not only ratified the decision to decolonize the territory and abandon its active presence on the territory but also committed itself to establishing a temporary administration together with Morocco and Mauritania and the collaboration of the Yemáa (Assembly of Sahrawi notables). For its part, Morocco occupied northern Western Sahara, which led to the conflict between Mauritania and Morocco and the Frente Popular para la Liberación de Saguía el Hamra y de Río de Oro (Frente Polisario—Polisario Front), the Sahrawi national liberation movement created in 1973, which in turn proclaimed the Saharan Arab Democratic Republic (SADR) in 1976, which has been recognized by more than eighty states and has been a member of the African Union since 1984. The conflict with Mauritania ended in 1979, but the war with Morocco dragged on nearly a decade. The ceasefire agreement came into force in 1991. That same year Security Council Resolution 690 adopted the settlement plan agreed by the two parties and established the United Nations Mission for the Referendum in Western Sahara (MINURSO). Once MINURSO had published a provisional electoral list for the holding of the referendum (February 2000), Morocco accused the members of the mission of bias and abandoned the peace plan. The core of the conflict lies in the fact that Morocco will only accept an autonomy formula for Western Sahara, which would remain an integral part of its national territory and under its sovereignty, whereas the Frente Polisario holds that the only acceptable solution to the conflict is holding a referendum on self-determination in which independence is an option.

General Overviews

Western Sahara studies may take place in a wide variety of settings. The following texts include at least two forms, overviews and collections, and provide a mainstream view of what are usually the most discussed elements of the topic. Since Spain acted as the administering power of the colonial territory, much of the literature has been published in Spanish. Because of the active presence of Arab countries in the conflict, French contributions are likewise abundant. Barbier 1982 is a good example of this. In addition, good mainstream views can be found in Franck 1976, Soroeta Liceras 2001 and Riquelme Cortado 2013, which focus on the legal concerns that the application of international law raises. Approaches that put a premium on the peace process, the holding of the referendum and the autonomy formula in particular, are employed in El Ouali 2008. Along this line, Zoubir and Volman 1993 combines an international view with a regional perspective on the conflict after the signature of the ceasefire agreement. See also Marauhn 2012.

  • Barbier, Maurice. Le conflit du Sahara occidental. Paris: Harmattan, 1982.

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    An all-encompassing volume with historical, political, and legal elements of the conflict; holds that the solution resides in the principle of self-determination and its subsequent exercise by Sahrawi people.

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  • El Ouali, Abdelhamid. Saharan Conflict: Towards Territorial Autonomy as a Right to Democratic Self-Determination. London: Stacey International, 2008.

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    A comprehensive treatment of the Morocco’s autonomy initiative; in the author’s view, this formula represents the only viable solution to the conflict.

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  • Franck, Thomas M. “The Stealing of the Sahara.” American Yearbook of International Law 70.4 (1976): 694–721.

    DOI: 10.2307/2200382Save Citation »Export Citation »E-mail Citation »

    Franck’s understanding rests on the premise that the right to self-determination of peoples applies to the case at hand. However, although the advisory opinion of the International Court of Justice had considered that sovereignty ties between the territory of Western Sahara and Morocco cannot overlap this right, this author insists on this idea.

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  • Marauhn, Thilo. “Sahara.” In The Max Planck Encyclopedia of Public International Law. Vol. 8. Edited by Rüdiger Wolfrum, 1095–1106. Oxford: Oxford University Press, 2012.

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    Reviews, if briefly, some key aspects of the conflict, such as the period of Spanish colonization and the efforts made by the United Nations to achieve decolonization; special emphasis is placed on natural resources and humanitarian issues; this article was last updated in May 2010.

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  • Riquelme Cortado, Rosa. “Marruecos frente a la (des)colonización del Sahara Occidental.” Anuario Mexicano de Derecho Internacional 13 (2013): 205-265.

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    Argues that Western Sahara conflict is an issue of decolonization whose solution lies in the exercises by the population of its right to freely determine its future via referendum, independence being one of the options. The author analyses the United Nations Security Council resolutions, especially those adopted after the Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region.

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  • Soroeta Liceras, Juan. El conflicto del Sahara Occidental, reflejo de las contradicciones y carencias del Derecho internacional. Bilbao, Spain: Servicio de Publicaciones de la Universidad del País Vasco, 2001.

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    Probably the most in-depth legal analysis offered from the standpoints of international and domestic law; covers a vast range of issues, including the Spanish colonization period and the standstill of the peace plan.

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  • Zoubir, Yahia H., and Daniel Volman, eds. International Dimensions of the Western Sahara Conflict. Westport, CT: Praeger, 1993.

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    Explores regional and international dimensions of the conflict after the ceasefire agreement reached between the Polisario Front and Morocco in 1991.

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Collections

Studies on Western Sahara as a territory awaiting decolonization and the effects arising from this situation are frequently addressed in collective works. These volumes are by and large the result of different international congresses, conferences, and seminars organized by universities and analysis and research centers, and they range over an immense array of topics including cultural, political, international cooperation, and human rights issues, to mention just a few examples. They include Arts and Pinto Leite 2007; Centre d’Études Internationals 2011; Martínez Lillo, et al. 2012; and Neville, et al. 2010.

  • Arts, Karin, and Pedro Pinto Leite, eds. International Law and the Question of Western Sahara. Leiden, The Netherlands: International Platform of Jurists for East Timor, 2007.

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    Spanish translation: Moisés Ponce de León, Karin Arts, and Pedro Pinto Leite, eds., El derecho internacional y la cuestión del Sahara Occidental (Oporto, Portugal: International Platform of Jurists for East Timor, 2012): Proceeding of the congress held in The Hague in 2006; addresses a broad variety of issues ranging from the history of the territory to the right to self-determination, as well as the principle of permanent sovereignty over wealth and natural resources.

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  • Centre d’Études Internationals. Le différend saharien devant l’Organisation des Nations Unies. Hommes et Sociétés Series. Paris: Karthala, 2011.

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    Edited by the Moroccan analysis group based on Rabat; rests on the premise that the right to self-determination does not apply in postcolonial contexts and highlights the supremacy of the principle of territorial integrity, which is regarded as closely related to the question of international security.

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  • Martínez Lillo, Pedro, Silvia Arias Careaga, Carlos Tanarro Alonso, and Silvia Weingärtner, eds. Universidad y Sahara Occidental: Reflexiones para la solución de un conflicto. Cuadernos Solidarios 6. Madrid: Universidad Autónoma de Madrid, 2010.

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    Gathering the results of scientific colloquia organized in public universities of Madrid since 2009, this volume focuses on the prospects for a resolution of the conflict.

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  • Martínez Lillo, Pedro, Juan Carlos Gimeno Martín, Silvia Arias Careaga, and Carlos Tanarro Alonso, eds. Memoria y tiempo presente del Sahara Occidental: Política, cooperación y cultura. Cuadernos Solidarios 8. Madrid: Universidad Autónoma de Madrid, 2012.

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    The results of several yearly meetings of experts in public universities in Madrid; sketches the situation in Western Sahara over time; special attention is given to political, cooperation, and cultural issues.

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  • Neville, Botha, Michèle Olivier, and Delarey van Tonder, eds. Conference on Multilateralism and International Law with Western Sahara as a Case Study: Pretoria, South Africa, 4 and 5 December 2008. Pretoria: VerLoren van Themaat Centre, University of South Africa, 2010.

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    Product of an international congress coorganized by the South African Department of International Relations and Cooperation (DIRCO) and the University of Pretoria in December 2008; understands international legal order together with the observance of human rights and democracy as essential yardsticks for the resolution of the conflict.

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Textbooks on Self-Determination

The systematic treatment of the principle of self-determination assumes a special significance insofar as it provides an in-depth analysis of the content, scope, and main difficulties encountered in its application. Throughout this exercise the case of Western Sahara provides a good example that has been addressed, to varying degrees, by some of the most authoritative references on the subject. Essential examples of this include Cassese 1995, Musgrave 1997, Pomerance 1982, Summers 2007, and Rigo Sureda 1973.

  • Cassese, Antonio. Self-Determination of Peoples: A Legal Reappraisal. Cambridge, UK: Cambridge University Press, 1995.

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    In Cassese’s understanding, there is a strong case to be made that it is only when the conflicting political interests of international actors are at stake that the principle of self-determination and the subsequent freedom of choice could provide a solution; see in particular p. 214 and following.

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  • Musgrave, Thomas D. Self-Determination and National Minorities. Oxford: Clarendon, 1997.

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    Outlines the relationship between the right to self-determination and the historical titles raised by Morocco and Mauritania; the International Court of Justice adopted a cautious and temporary position, since historical titles were found not to be applicable to the case at hand; see in particular pp. 241–255.

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  • Pomerance, Michla. Self-Determination in Law and Practice: The New Doctrine in the United Nations. The Hague: Martinus Nijhoff, 1982.

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    Makes frequent references to Western Sahara as a good example that illustrates the core characteristics of the right; see in particular p. 26 and following.

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  • Rigo Sureda, A. The Evolution of the Right of Self-Determination: A Study of United Nations Practice. Leiden, The Netherlands: Sijthoff, 1973.

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    Addresses the situation in Western Sahara from a 1970s perspective as a straightforward case study; see in particular p. 212 and following.

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  • Summers, James. Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations. Leiden, The Netherlands: Martinus Nijhoff, 2007.

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    Explores general aspects of the conflict, with special emphasis on the advisory opinion of the International Court of Justice; see in particular p. 301 and following.

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Histories

The historical development of Western Sahara dispute have been the subject of a broad variety of works that address major events ranging from the Spanish colonization over the subsequent conflict to the intervention by the United Nations. In this light, Pazzanita and Hodges 1994, Caro Baroja 1955, Hernández Pacheco and Cordero Torres 1962, Berramdane 1992, Bontems 1984, Diego Aguirre 1988, and Gaudio 1978 offer a historical reading of the situation in Western Sahara.

  • Berramdane, Abdelkhaleq. Le Sahara Occidental: Enjeu maghrèbin. Paris: Karthala, 1992.

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    From the Cold War to the beginning of the voter-registration process by the MINURSO, provides an analysis of the interests of states in Western Sahara; considers the territory as an integral part of Morocco.

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  • Bontems, Claude. La guerre du Sahara occidental. Paris: Presses Universitaires de France, 1984.

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    Offers a treatment of major milestones in the conflict and highlights the most relevant aspects of the Sahrawi people’s struggle; the monograph is introduced by geographical, historical, ethnographic, and economic facts about the Sahrawi and Moroccan people.

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  • Caro Baroja, Julio. Estudios Saharianos. Madrid: Consejo Superior de Investigaciones Cientificas, 1955.

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    Authoritative anthropologic study that provides in-depth analysis of traditional Sahrawi culture; constitutes a valuable source of information on customs and practices that in many instances were extirpated or in danger of extinction.

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  • Diego Aguirre, José Ramón. Historia del Sahara español. Madrid: Kaydeda, 1988.

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    Analysis of the conflict by a Spanish military officer who took an active role during peace negotiations between Spain and the Polisario Front.

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  • Gaudio, Attilio. Le dossier du Sahara Occidental. Paris: Nouvelles Éditions Latines, 1978.

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    A picture of the conflict from a historical standpoint; understands the dispute as an Algerian invention in an attempt to defend its interests against Morocco’s.

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  • Hernández Pacheco, F., and J. M. Cordero Torres. El Sahara Español. Madrid: Instituto de Estudios Políticos, 1962.

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    Sketches in fine detail the territory under Spanish colonization covering a vast range of topics that are of relevance to a historical understanding of the period: geography, geology, history, anthropology; offers a mainstream view of the Spanish protectorate in Morocco, including Ifni.

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  • Pazzanita, Anthony G., and Tony Hodges. Historical Dictionary of Western Sahara. 2d ed. Metuchen, NJ: Scarecrow, 1994.

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    All-encompassing treatment of the land, people, and culture of Western Sahara and the origins of the conflict. This book first appeared in 1982.

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Spanish Administration

The identification of the legal framework accorded to the territory and its people comes to complete the historical treatment of the Spanish administration. Please note that the administrative organization tends to deal with the legal characteristics according to which the territory is ruled. In this vein, identifying the Spanish legal basis for this treatment is essential for a comprehensive understanding of the administration. Cordero Torres 1941, Cordero Torres 1949, Cordero Torres 1962, and Lázaro Miguel 1974 are helpful sources in this regard. Herrero de Miñón 1972 analyzes this administrative organization in the light of the doctrine adopted by the Spanish Council of State. A review of this topic from the perspective of the Spanish Constitution is afforded in Remiro Brotóns 1978.

  • Cordero Torres, José-María. Tratado elemental de derecho colonial español. Madrid: Editora Nacional, 1941.

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    A study of the legal system in Spain’s colonial territories in Africa (Guinea, Ifni, and Western Sahara).

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  • Cordero Torres, José María. El africanismo en la cultura hispánica contemporánea. Madrid: Ediciones Cultura Hispánica, 1949.

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    A study of social and cultural attitudes to the Spanish colonization of Africa.

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  • Cordero Torres, José María. Textos Básicos de África. 2 vols. Madrid: Instituto de Estudios Políticos, 1962.

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    Two-volume compilation of Spanish applied law in African colonies.

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  • Herrero de Miñón, Miguel. “La configuración del territorio nacional en la doctrina reciente del Consejo de Estado español.” In Estudios de derecho administrativo: Libro jubilar del Consejo de Estado. Edited by Consejo de Estado, España, 357–427. Madrid: Instituto de Estudios Políticos, 1972.

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    The leading Spanish constitutionalist and one of the fathers of the 1978 Spanish Constitution analyzes the legal status of colonial territories under Spanish domination from the perspective of domestic law.

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  • Lázaro Miguel, Heraclio. Legislación de Sahara: Años 1965–1973. Madrid: Dirección General de Promoción de Sahara, Instituto de Estudios Africanos, CSIC, 1974.

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    Compilation of Spanish legislation applicable to Western Sahara.

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  • Remiro Brotóns, Antonio. Territorio nacional y Constitución 1978. Madrid: Cupsa, 1978.

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    An authoritative work in the field; analyzes the Spanish government’s positions in the light of the constitution toward colonial territories in Africa: Guinea, Ifni, and Western Sahara.

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Boundaries and Delimitation

Notwithstanding the delineation of the land borders by France and Spain between 1900 and 1912, the delimitation of maritime boundaries is an outstanding issue that must be addressed in a thorough and comprehensive manner. Cordero Torres 1960 examines Spain’s frontiers in its colonial territories. Atmane 2008 reviews the issue of maritime delimitation in connection with the interests of Morocco in the area. Brownlie 1979 is an authoritative source that provides maps and other primary documents. A study on Morocco’s frontiers and boundaries is offered in Trout 1969. Soroeta 2011 scrutinizes the law adopted by the Sahrawi Arab Democratic Republic on maritime zones as a tool for providing criteria for a maritime delimitation. See also Smith 2010.

  • Atmane, Tarik. España y Marruecos frente al derecho del mar. A Coruña, Spain: Netbiblo, 2008.

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    Explores the conflictive nature of maritime delimitation between Spain and Morocco, including adjacent areas.

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  • Brownlie, Ian. “Morocco–Western Sahara.” In African Boundaries: A Legal and Diplomatic Encyclopaedia. By Ian Brownlie, 149–150. London: Hurst, 1979.

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    Describes, if briefly, the state of the frontiers between Morocco and Western Sahara, complemented by the following chapters: “Algeria–Western Sahara” (pp. 99–101), “Morocco–Western Sahara” (pp. 149–150), and “Mauritania–Western Sahara” (pp. 436–454); also published by University of California Press.

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  • Cordero Torres, José María. Fronteras hispánicas: Geografía e historia, diplomacia y administración. Madrid: Instituto de Estudios Políticos, 1960.

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    Examines Spain’s frontiers and their impact on those of its colonial possessions, including a consideration of geographical, historical, diplomatic, and administrative issues.

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  • Smith, Jeffrey J. “From the Desert to the Sea: The Maritime Jurisdiction of Independent Western Sahara.” MA diss., Tufts University, 2010.

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    The law of maritime delimitation, which includes the 1982 United Nations Convention on the Law of the Sea, decisions of the International Court of Justice and other tribunals, and state practice, is reviewed and applied to determine the likely or probable maritime jurisdiction of the Sahrawi Arab Democratic Republic, including its territorial sea, contiguous zone, exclusive economic zone, and continental shelf.

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  • Soroeta Liceras, Juan. “La délimitation et l’exploitation des espaces maritimes du Sahara Occidental, un caillou (de plus) dans la chaussure des relations Espagnole-Marocain.” In Sûreté maritime et violence en mer. Edited by José Manuel Sobrino Heredia, 131–145. Brussels: Bruylant, 2011.

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    On the basis of the right of Sahrawi people to exploit their natural resources, focuses on the maritime delimitation of sea spaces as provided for by Law no. 03/2009 of 21 January 2009 establishing the Maritime Zones of the Sahrawi Arab Democratic Republic.

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  • Trout, Frank E. Morocco’s Saharan Frontiers. Geneva, Switzerland: Droz, 1969.

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    Besides providing a study on the southern frontiers of Morocco, it also explores those shared with Algeria; combines geographical information with conflicts resulting from the delimitation process; maps are included.

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Parties to the Conflict

Despite the existence of two well-defined conflicting parties, the Kingdom of Morocco on the one hand and the Polisario Front on the other (see Miské 1978), a more comprehensive identification of other actors that have been involved in one way or another in the conflict provides additional pieces of a complex puzzle and advances our understanding of the factors that have hindered not only a viable and lasting solution to the conflict but also the exercise of self-determination by Sahrawi people. In this vein, Zunes and Mundy 2010 outlines these scenarios in the light of economic and strategic interests. Spanish, North American, and neighboring countries’ positions are addressed in Ameyar 2000 and Zoubir 2007. A review of the documents elaborated by the Ford administration on Western Sahara is afforded in Mundy 2006. Larosch 2007 focuses on the five permanent members of the Security Council and the resolutions adopted by the political body (see also Instruments).

  • Ameyar, Hafida. Sahara Occidental: Que veut l’ONU?. Algiers, Algeria: Casbah Editions, 2000.

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    An Algerian study analyzing the positions of the states involved, directly or indirectly, in the conflict, with special reference to the interests of the United States and the European Union in the restructuring of the southern Mediterranean and to the position of the author’s own country.

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  • Larosch, Jérôme. Caught in the Middle: UN Involvement in the Western Sahara Conflict. Clingendael Diplomacy Papers 11. The Hague: Netherlands Institute of International Relations “Clingendael” 2007.

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    Suggests that the United Nations, when assessing the intervention of third parties in the conflict, should examine the political motivations in order to identify interests beyond conflict resolution, particularly in the case of the members of Security Council.

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  • Miské, Ahmed-Baba. Front Polisario: L’âme d’un peuple—Suivi d’un entretien avec Jean Lacouture. Paris: Éditions Rupture, 1978.

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    Discusses the origins of the Polisario Front, with emphasis on the disruptive effects of the war of national liberation on Sahrawi society, which was forced to abandon its tribal character and ancient social structures, replacing the values of traditional Bedouin society with those of a people at war.

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  • Mundy, Jacob. “Neutrality or Complicity? The United States and the 1975 Moroccan Takeover of the Spanish Sahara.” Journal of North African Studies 11 (2006): 275–306.

    DOI: 10.1080/13629380600803001Save Citation »Export Citation »E-mail Citation »

    In the light of recently declassified US records and archival sources obtained under the US Freedom of Information Act, reviews the pro-Morocco policy carried out by the United States under the Ford administration, despite its official neutral position.

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  • Zoubir, Yahia H. “Stalemate in Western Sahara: Ending International Legality.” Middle East Policy 14 (2007): 158–177.

    DOI: 10.1111/j.1475-4967.2007.00331.xSave Citation »Export Citation »E-mail Citation »

    Outlines the positions adopted by Algeria, the United States, and Spain toward Western Sahara; special attention is drawn to the relations between Algeria and Morocco, in particular in the context of an eventual annexation of Western Sahara by Morocco.

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  • Zunes, Stephen, and Jacob Mundy. Western Sahara: War, Nationalism, and Conflict Irresolution. Syracuse, NY: Syracuse University Press, 2010.

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    A well-documented study on the origin, evolution, and international relations of Western Sahara; special emphasis is placed on the economic, political, and strategic interests surrounding the conflict; in the authors’ view, a referendum on self-determination represents the solution to the conflict.

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International Relations and Politics

Political and diplomatic implications of the conflict over Western Sahara have given rise to a good number of monographs by diplomats, historians, constitutionalists, and political scientists in general that, in portraying Western Sahara from disciplines other than international law, enable a comprehensive and multidisciplinary treatment of the question from a variety of angles. Good examples of this are Villar 1982 and Piniés 1990, both by members of the Spanish delegation to the United Nations, which offer a detailed study of the Spanish administration and subsequent withdrawal. An analysis of the conflict with special emphasis on the Cold War is offered in Damis 1983. A study on the peace plan period is found in Ruf 2002. Fernández-Arias 2005 focuses on Baker Plan II and de facto withdrawal. Ruiz Miguel 1995 examines Spanish foreign policy in light of the situation in Western Sahara. From the standpoint of history, López García 2009 proposes decentralization and autonomy within Morocco as a scenario for the resolution of the conflict.

  • Damis, John. Conflict in Northwest Africa: The Western Sahara Dispute. Stanford, CA: Hoover Institution, 1983.

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    A comprehensive study of the conflict after Spanish withdrawal; Damis, a professor of political science, explores the position of the parties and interested states, in particular during the period of the Cold War.

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  • Fernández-Arias, Carlos. “Sahara Occidental: Un año después de Baker.” Política Exterior 107 (2005): 73–82.

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    This author draws attention to the significant step taken for the Polisario Front accepting the peace plan at the risk of losing its position in the pursuit of the independence in the self-determination referendum in accordance with that plan.

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  • López García, Bernabé. “Sahara 2009: Acabar con las ocasiones perdidas.” Política Exterior 127 (2009): 113–126.

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    López García, a professor of the history of contemporary Islam, sees both negotiated autonomy and recognition of the distinct nature of the Saharawi people as a unique win-win scenario meeting the two conflicting parties’ claims.

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  • Piniés, Jaime de. La descolonización del Sáhara: Un tema sin concluir. Madrid: Espasa Calpe, 1990.

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    Outlines in detail the negotiations undertaken during the months preceding and following the Marcha Verde; the author acted as permanent representative of Spain to the United Nations.

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  • Ruf, Werner. “Sahara Occidental: Un conflit sans solution?” Annuaire de l’Afrique du Nord 40 (2002): 123–140.

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    Werner, a professor of international relations, examines the position of the parties to the conflict before the peace plan was adopted; this work was written immediately after the completion of the work of the identification commission of MINURSO, to which special attention is given.

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  • Ruiz Miguel, Carlos. El Sahara Occidental y España: Historia, política y derecho; Análisis crítico de la política exterior española. Madrid: Dykinson, 1995.

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    A cross-cutting analysis from the standpoints of history, politics, and law; Ruiz Miguel, a professor of Spanish constitutional law, concludes that there is a strong case to be made by applying the right to self-determination in Western Sahara.

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  • Villar, Francisco. El proceso de autodeterminación del Sáhara. Valencia, Spain: Fernando Torres, 1982.

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    Essential account of the conflict and situation in Western Sahara provided by a key member of the Spanish diplomatic representation to the United Nations.

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The United Nations on Western Sahara

The activity of the United Nations has encompassed a broad range of issues that are of relevance in the situation in Western Sahara. Two distinct actions have nonetheless been closely scrutinized by the literature on Western Sahara: the advisory opinion of the International Court of Justice following a request submitted by the General Assembly, and the mission established for a referendum in Western Sahara. The next two subsections will thus focus on these two dimensions, while a third one will provide some key international instruments issued by different bodies of the international organization.

International Court of Justice

In Resolution 3292 (29th Session), 13 December 1974, the General Assembly requested an advisory opinion from the International Court of Justice on Western Sahara. The advisory opinion of 16 October 1975 stated that “the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of General Assembly 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 peoples of the Territory.” Since this legal opinion marked a watershed in the development of the conflict, it has come under intense scrutiny by a good number of internationalists who have addressed the content and the reasoning in different settings but ended up finding common ground when highlighting the orthodoxy shown by the international tribunal. Despite the fact that the court clearly established that Morocco and Mauritania had no claims of sovereignty over the peoples of the Western Sahara, and that the majority of legal commentators agree with the general terms of the advisory opinion (Bedjaoui 1975, Carrillo Salcedo 1976, Ziccardi Capaldo 1978), others have criticized the opinion’s ambiguity (Shaw 1978), while others again have regretted the court’s failure to take the opportunity to focus in greater depth on the right of peoples to self-determination (Chappez 1976, Flory 1975, Joffé 1987, Riedel 1976).

  • Bedjaoui, Mohammed. Terra nullius, “droits” historiques et autodétermination. The Hague: Sijthoff, 1975.

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    The former president of the International Court of Justice provides a complete legal review of one of the most complex issues addressed by the advisory opinion: historical titles.

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  • Carrillo Salcedo, J. A. “Libre determinación de los pueblos e integridad territorial de los Estados en el dictamen del Tribunal Internacional de Justicia sobre el Sáhara Occidental.” Revista Española de Derecho Internacional 29.1 (1976): 33–49.

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    Agrees with the court on the need to apply the right to free self-determination, as that would be consistent not only with the position held by the court itself in its opinion of 21 June 1971 but also with the progressive development of international law as set out in Resolution 2625 (25th Session).

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  • Chappez, Jean. “L’avis consultatif de la Cour internationale de Justice du 16 octobre 1975 dans l’affaire du Sahara Occidental.” Revue Générale de Droit International Public 4 (1976): 1132–1187.

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    Regrets the missed opportunity to deal with the principle of self-determination in a profound and thorough manner in order to shed light on certain unclear aspects of the law on decolonization.

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  • Flory, Maurice. “l’avis de la Cour Internationale de Justice sur le Sahara Occidental.” Annuaire Français du Droit International 21 (1975): 253–277.

    DOI: 10.3406/afdi.1975.2330Save Citation »Export Citation »E-mail Citation »

    Insists on the desirability of a more instructive approach in addressing the nuts and bolts of the principle of self-determination.

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  • Joffé, George. “The International Court of Justice and the Western Sahara Dispute.” In War and Refugees: The Western Sahara Conflict. Edited by Richard Lawless and Laila Monahan, 16–31. London: Pinter, 1987.

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    Argues that the advisory opinion came to naught since the right to self-determination constitutes an applicable principle regardless of the conclusion of the tribunal on the existence of sovereignty ties.

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  • Riedel, Eibe H. “Confrontation in Western Sahara in the Light of the Advisory Opinion of the International Court of Justice of 16 October 1975: A Critical Appraisal.” German Yearbook of International Law 19 (1976): 405–442.

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    Assesses the incapacity of the court to resolve the difficulties and controversial issues that the right to self-determination raises.

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  • Shaw, Malcolm. “The Western Sahara Case.” British Yearbook of International Law 49 (1978): 119–154.

    DOI: 10.1093/bybil/49.1.119Save Citation »Export Citation »E-mail Citation »

    Examines the ambiguity shown by the advisory opinion, since the principle of self-determination is already deemed a legal right in the context of decolonization; in Shaw’s view, the consideration of legal ties of a nonterritorial nature provides an opportunity for misinterpretation.

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  • Ziccardi Capaldo, G. “Il parere consultivo della Corte Internazionale di giustizia sul Sahara Occidentale: Un occasione per un riesame della natura e degli effetti della funzione consultiva.” Comunicazioni e Studi 15 (1978): 529–564.

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    Despite the quasi-litigious character of the procedure, holds that the court acted in compliance with the purpose and provisions set forth in its consultative function provisions.

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The Peace Process

The peace plan became operational soon after the Ceasefire agreement of 6 September 1991. Since then, the United Nations Mission for the Referendum in Western Sahara (MINURSO), a mission established by UN Security Council Resolution 690 (1991) of 29 April 1991 (see also Instruments), has already undertaken the main task: the voting registration process for the referendum, which never took place: Morocco accused the mission of bias and withdrew from the plebiscite. In its view, the referendum ought not to be interpreted as a preface to independence but rather as a formula for limited autonomy.

Academic Studies

The first stage of the peace plan (1991–2000) is addressed in Damis 1992, Naldi 1994, Chopra 1996, Zoubir 1996, Froberville 1996, and Rucz 1994. Soroeta Liceras 2005, and Solà-Martín 2007 review the peace process through all the stages.

  • Chopra, Jarat. “Quitting Western Sahara.” Geopolitics and International Boundaries 1 (1996): 55–76.

    DOI: 10.1080/13629379608407558Save Citation »Export Citation »E-mail Citation »

    Studies the weaknesses and shortcomings of the peace process; draws attention to the lack of an all-encompassing action at regional and international levels and a meaningful political engagement.

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  • Damis, John. “The UN Settlement Plan for the Western Sahara: Problems and Prospects.” Middle East Policy 1 (1992): 36–46.

    DOI: 10.1111/j.1475-4967.1992.tb00032.xSave Citation »Export Citation »E-mail Citation »

    Reviews the first steps of, and the initial obstacles encountered by, the peace process.

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  • Froberville, Martine de. Sahara Occidental: La confiance perdue. Paris: Harmattan, 1996.

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    Examines the nature of the obstacles encountered in the peace process as well as the potential for renewed violent conflict; a detailed chronology and reports and resolutions are included at the end of the monograph.

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  • Naldi, Gino J. “UN Buries Its Head in the Desert Sands: The Saga of Western Sahara.” African Journal of International and Comparative Law 6 (1994): 653–660.

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    Understands the different interpretative criteria for voter eligibility as the primary obstacle hindering the implementation of the plan; in Naldi’s view, the United Nations should strengthen its role vis-à-vis Morocco’s claims.

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  • Rucz, Claude. “Un référendum au Sahara Occidental?” Annuaire Français de Droit International 40 (1994): 243–259.

    DOI: 10.3406/afdi.1994.3191Save Citation »Export Citation »E-mail Citation »

    Draws attention to the difficulties and constraints encountered during the process of voter registration after the first three years of its implementation.

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  • Solà-Martín, Andreu. The United Nations Mission for the Referendum in Western Sahara. Lewiston, NY: Edwin Mellen, 2007.

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    Assesses the role played by the mission in terms of conflict resolution; highlights the dysfunction of MINURSO when achieving the different mandated tasks.

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  • Soroeta Liceras, Juan. “El plan de paz del Sahara Occidental, ¿viaje a ninguna parte?” Revista Electrónica de Derecho Internacional 10 (2005): 1–33.

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    Addresses a wide variety of issues, including the implementation of the peace plan and the refusal of Morocco to accept the voter list drawn up by MINURSO; puts a premium on the impact of the successive secretaries-general on the (non-)implementation of the plan.

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  • Zoubir, Yahia H. “The Western Sahara Conflict: A Case Study in Failure of Prenegotiation and Prolongation of Conflict.” California Western International Law Journal 26 (1996): 173–213.

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    Outlines the main underlying causes of the stagnation of the peace plan only five years after its adoption by the United Nations Security Council.

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The Peace Process According to Its Protagonists

Some of those who occupied the posts of special envoy or special representative of the UN secretary-general have helped to shed light on the operation of the peace plan from the stance of their position as its protagonists. Dunbar 2000, by a former special representative, and Jensen 2012, by a former special envoy, are two examples of works reflecting this stance.

  • Dunbar, Charles. “Saharan Stasis: Status and Future Prospects of the Western Sahara Conflict.” Middle East Journal 54 (2000): 522–545.

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    Critical analysis offered by the special representative of the United Nations secretary-general (from February 1998 to March 1999); focuses on the prospects for a solution to the conflict as they were perceived at the time.

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  • Jensen, Erik. Western Sahara: Anatomy of a Stalemate? 2d ed. Boulder, CO: Lynne Rienner, 2012.

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    As former special representative of the Secretary-General (1995–1999), the author provides insights on the development of the peace plan; also analyzes the historical evolution and the voter registration process for the referendum.

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Instruments

A number of primary sources issued by major bodies of the United Nations are important for a firsthand understanding of the situation in Western Sahara. In this regard, the General Assembly, Security Council, and secretary-general have addressed the question at one time or another over the course of the conflict. This is true of the General Assembly, which played a leading role during the Spanish administration period. Resolution 2229 (United Nations General Assembly 1966) reaffirmed the inalienable right of the peoples of Ifni and Spanish Sahara to self-determination in accordance with General Assembly Resolution 1514 (25th Session). In its Resolution 3292 (29th Session), the body requested an advisory opinion from the International Court of Justice and decided to send a visiting mission to the territory (United Nations General Assembly 1975). In November 1975 Spain decided to hand over administration of the territory to an interim administration, in which Morocco and Mauritania would take part, but that administration was never established (Declaration of Principles on Western Sahara, cited under International Treaties). Then, as result of the Marcha Verde (Green March) and the serious challenge it posed, it was subsequently decided to place the situation in Western Sahara under the supervision of Security Council (see Parties to the Conflict). Particularly important in this regard are the following resolutions issued by the political body: Resolution 380 (United Nations Security Council 1975), which requested that Morocco stop the Marcha Verde, and Resolution 690 (United Nations Security Council 1991), which established the United Nations Mission for the Referendum in Western Sahara (see also United Nations on Western Sahara). After several years of paralysis, the Houston Agreements succeeded in unblocking the voter identification process (Resolution 1133; United Nations Security Council 1997), but when MINURSO published the provisional census lists, Morocco decided to abandon the peace plan, accusing MINURSO of bias. The Peace Plan, adopted by the secretary-general for Self-Determination of the People of Western Sahara contained in Resolution 1495 (United Nations Security Council 2003), and the previous implementation plan, proposed by the secretary-general pursuant to Security Council Resolution 621 (1988) in 1990 (United Nations Security Council 1990), are also of utmost significance in representing alternative political solutions in different settings (Baker’s initial proposal, the Framework Agreement on the Status of Western Sahara (United Nations Security Council 2001), failed to secure the approval of the Security Council). Both parties presented new proposals aimed at unblocking the process, although they maintained their previous positions. The Letter Dated 11 April 2007 addressed to the Security Council by Morocco and its annex (United Nations Security Council 2007), containing the Moroccan initiative for negotiating autonomy, represents an essential contrasting means of resolving the situation in Western Sahara. By contrast, the Letter Dated 10 April 2007 addressed to the president of the General Assembly contains the proposal of the Frente POLISARIO for a mutually acceptable political solution that provides for the self-determination of the people of Western Sahara [legal citation] including the option of the independence.

International Treaties

Three bilateral treaties are important for a firsthand understanding of the situation in Western Sahara: the Declaration of Principles on Western Sahara (also known as Acuerdos de Madrid, 1975), the Convention Concerning the State Frontier Line Established between the Islamic Republic of Mauritania and the Kingdom of Morocco (1976), and the Peace Agreement between Mauriantia and the Polisario (1979).

Regional Status and Relations

The geographical position and status as non-self-governing territory of Western Sahara have strongly influenced its relations with neighboring areas, albeit for various reasons. In this regard, the direct relations established as a full member in the Organization of African Unity on the one hand and the legal uncertainty arising from Morocco-European relations vis-à-vis the territory on the other represent two different regional settings that will be addressed in further detail in the sections Sahrawi Arab Democratic Republic (SADR) and Admission in the Organization of African Unity and European Union–Morocco Relations.

The Sahrawi Arab Democratic Republic (SADR) and Admission in the Organization of African Unity

The Sahrawi Arab Democratic Republic was proclaimed by the Polisario Front on 27 February 1976 during the Marcha Verde. In 1984, SADR was accepted as a full member of the Organization of African Unity (now the African Union). This controversial admission resulted in the withdrawal of Morocco. As a consequence, the organization suffered from a polarization and growing confrontation between the members who recognized the status accorded to the new member and those who sided with Morocco. Eventually, it triggered a deep crisis within the regional institution, which is addressed in detail in Barbier 1983, Bennouna 1980, Naldi 1982, and Weexteen 1978. Bedjaoui 1984 and Pazzanita 1985 put a premium on the issue of the legality of the admission.

  • Barbier, Maurice. “Le problème du Sahara Occidental et la crise de l’OUA.” Mois en Afrique 18.207–208 (1983): 31–51.

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    Analyzes the crisis that the admission of the Sahrawi Arab Democratic Republic posed for the Organization of African Unity.

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  • Bedjaoui, Mohamed. “L’admission d’un nouveau membre de l’Organisation de l’Unité Africaine.” In Le droit des peuples à disposer d’eux-mêmes: Méthodes d’analyse du droit international, Mélanges offerts a Charles Chaumont. Edited by Charles Chaumont 35–37. Paris: Pédone, 1984.

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    Argues that the admission of SADR was in accordance with the founding charter of the Organization of African Unity; the author acted as legal adviser to Algeria before the International Court of Justice in 1975.

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  • Bennouna, Mohamed. “L’admission d’un nouveau membre à l’Organisation de l’Unité Africaine.” Annuaire Français du Droit International 26 (1980): 193–198.

    DOI: 10.3406/afdi.1980.2386Save Citation »Export Citation »E-mail Citation »

    Bennouna, a Moroccan judge and former permanent representative to the United Nations, assesses the admission of Sahrawi Arab Democratic Republic to the Organization of African Unity in a critical manner.

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  • Naldi, J. “The Organization of African Unity and the Saharan Arab Democratic Republic.” Journal of African Law 26 (1982): 152–162.

    DOI: 10.1017/S0021855300013127Save Citation »Export Citation »E-mail Citation »

    Provides an analysis of the crisis triggered within the regional organization.

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  • Pazzanita, Anthony G. “Legal Aspects of Membership in the Organization of African Unity: The Case of Western Sahara.” Case Western Reserve Journal of International Law 17 (1985): 123–158.

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    Argues that the criteria set out in international law with regard to statehood (territory, people, and government) are completely fulfilled in the case at hand.

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  • Weexteen, Raoul. “L’OUA et la question saharienne.” Annuaire de l‘Afrique du Nord 7 (1978): 213–237.

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    Focuses on the period of time during which the new admission posed a major challenge to regional stability.

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European Union–Morocco Relations

The significance of European Union–Morocco relations for Western Sahara lies particularly in the legal effects of the fishery agreements concluded at the bilateral level. Concerning Sahrawi sea spaces, the question of their legality raises a number of issues in light of the recognition and the principle of permanent sovereignty over natural resources stemming from the right to self-determination (see also Permanent Sovereignty over Natural Resources). This takes on a new dimension for two main reasons. First, maritime delimitation remains an outstanding issue to be addressed in an all-encompassing manner (see also Boundaries and Delimitation), and, second, the European Parliament is one of the most active institutions in drawing attention to human rights violations in Western Sahara (see also Human Rights Reports). These and other related issues have been thoroughly addressed by doctrine, which has adopted different approaches in this respect. A mainstream view of EU policies with regard to Western Sahara is afforded in Vaquer i Fanés 2007. Remiro Brotóns 2012 reviews the situation of Western Sahara based on the current state of bilateral relations. Soroeta Liceras 2009 underscores the contradictions shown by European policies. Milano 2006 considers these relations as an indirect form of recognition of an illegal situation. Riquelme 2012 (cited under Refugees and Refugee Camps) stresses the context of unlawfulness surrounding these sectorial agreements with regard to the principle of sovereignty over natural resources. Avenues for legal remedy are explored in Etienne 2010. A study of European Union–Morocco relations and the impact on the territory is provided in Vaquer i Fanés 2007. Darbouche and Colombo 2010 examines the alternative role played by local civil-society organizations in the transformation of the Western Sahara conflict.

  • Darbouche, Hakim, and Silvia Colombo. The EU, Civil Society and Conflict Transformation in the Western Sahara: The Failure of Disengagement. MICROCON Policy Working Paper 13. Brighton, UK: MICROCON, 2010.

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    This paper examines the alternative role played by local civil-society organizations in the transformation of the Western Sahara conflict. The findings of this study point to the overwhelmingly inflammatory role played by local civil-society organizations in this conflict, but the authors identify ways in which more peace-building civil actors could be empowered by the European Union.

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  • Etienne, Judicaël. “L’accord de pêche CE-Maroc: Quels remèdes juridictionnels européens à quelle illicéité internationale?” Revue Belge de Droit International 43 (2010): 77–107.

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    Assesses the legality of fishery agreements concluded between the European Union and Morocco and examines eventual avenues for legal remedy within the European legal bodies.

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  • Milano, Enrico. “The New Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco: Fishing Too South?” Anuario de Derecho Internacional 22 (2006): 413–457.

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    Understands the application of fishery agreements to sea spaces as an implicit form of recognition of an illegal situation affecting the territory, which also threatens the role of the European Union as neutral actor.

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  • Remiro Brotóns, Antonio, ed. Unión Europea-Marruecos: ¿Una vecindad privilegiada? Madrid: Academia Europea de Ciencias y Artes, 2012.

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    In addition to providing an insightful analysis encompassing a wide range of issues from migration and human rights to democracy, the authors revisit the territorial aspects and the Western Sahara conflict as recurring elements affecting the state of the relations.

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  • Soroeta Liceras, Juan. “La posición de la Unión Europea en el conflicto del Sahara Occidental, una muestra palpable (más) de la primacía de sus intereses económicos y políticos sobre la promoción de la democracia y de los derechos humanos.” Revista de Derecho Comunitario Europeo 34 (2009): 823–864.

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    Examines the role played by the European Union in the conflict in Western Sahara and highlights the contradictions shown by community policies in concluding fishery agreements with Morocco.

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  • Vaquer i Fanés, Jordi. “The European Union and the Western Sahara Conflict: Managing the Colonial Heritage.” In European Foreign Policy in an Evolving International System: The Road towards Convergence. Edited by Nicola Casarini and Costanza Musu, 144–162. Basingstoke, UK: Palgrave Macmillan, 2007.

    DOI: 10.1057/9780230593145Save Citation »Export Citation »E-mail Citation »

    Analyzes the EU positions toward Western Sahara; this contribution is part of a monograph devoted to European foreign policy conducted at regional and international levels.

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Rights under the Principle of Self-Determination

The principle of self-determination of peoples under colonial domination implies the recognition of a series of guaranties and rights belonging to the non-self-governing territory and its people. In this light, the prohibition of the use of force in the context of occupation and the observance of the principle of permanent sovereignty over wealth and natural resources assume particular prominence in the case of Western Sahara.

Permanent Sovereignty over Natural Resources

The management and allocation of natural wealth and resources by colonial people stems from the principle of permanent sovereignty of colonial peoples, and it is conceived as an expression of the economic nature of their separation from the administering and occupying power. It is in this regard that the legal opinion on the legality of Exploring and Exploiting Natural Resources in Western Sahara by the United Nations Former Under-Secretary for Legal Affairs and Legal Counsel Hans Corell dated 29 January 2002 (Corell 2010) represents a landmark: not only does it draw a conceptual framework of the principle, but it also sheds light on the scope of its legality in the face of the challenge posed by the exploration and evaluation activities of Morocco and foreign companies off the Sahrawi coast. A number of works have thus addressed the essential part played by this dimension in the situation in Western Sahara. A thorough analysis of the principle and its effects in terms of human rights is offered in Badía Martí 2009 and Riquelme Cortado 2011. Fisera 2005 develops a geopolitical view; so too, if briefly, do Haugen 2007 and Olsson 2006 (see also European Union–Morocco Relations). Davanture 2006 is a comparative study of the Palestinian and Sahrawi occupied territories.

  • Badía Martí, Anna M. “La cuestión del Sahara Occidental y la explotación de sus recursos naturales.” In El derecho internacional y comunitario ante los retos de nuestro tiempo: Homenaje a la profesora Victoria Abellán Honrubia, Vol. 1. Edited by Anna María Badia Martí, Antoni Pigrau i Solé, and Andreu Olesti Rayo, 29–53. Madrid: Marcial Pons, 2009.

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    Reviews the legal grounds for exploiting natural resources; also outlines their impact on issues of international humanitarian law in the context of military occupations.

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  • Corell, Hans. “The Legality of Exploring and Exploiting Natural Resources in Western Sahara.” In Conference on Multilateralism and International Law with Western Sahara as a Case Study: Pretoria, South Africa, 4 and 5 December 2008. Edited by Neville Botha, Michèle Olivier, and Delarey van Tonder, 231–247. Pretoria: VerLoren van Themaat Centre, University of South Africa, 2010.

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    The author extends the terms of the reasoning expressed in the legal opinion that he delivered in January 2002 in relation with other natural resources, living and nonliving, of the Western Sahara.

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  • Davanture, Sandrine. “Les limites de l’application du droit sur les ressources naturelles: Le cas des territoires palestiniens et du Sahara Occidental.” PhD diss., Université du Québec à Montréal, 2006.

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    Davanture, a Canadian professor, examines the principle of the permanent sovereignty of peoples over their natural resources through a comparative study of the occupied Palestinian and Sahrawi territories, as well as the reaction of international organizations and states to their illegal exploitation.

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  • Fisera, Raphaël. “A People vs. Corporations? Self-Determination, Natural Resources and Transnational Corporation in Western Sahara.” Anuario de Acción Humanitaria y Derechos Humanos 2 (2005): 15–66.

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    Argues that the decision of Morocco to involve Western oil and gas transnational corporations in Western Sahara introduces a complicating factor and a new corporate setting of limited accountability mechanisms.

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  • Haugen, Hans Morten. “The Right to Self-Determination and Natural Resources: The Case of Western Sahara.” Law, Environment and Development Journal 3 (2007): 70–81.

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    Suggests that the exploitation of natural resources and access to water are sectors to be excluded from the companies’ field of activity until the conflict in Western Sahara is settled by means provided under international law.

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  • Olsson, Claes, ed. The Western Sahara Conflict: The Role of Natural Resources in Decolonization. Current African Issues 33. Uppsala, Sweden: Nordic Africa Institute, 2006.

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    Provides detailed narratives such as “Natural Resources and the Western Sahara” (pp. 17–22) and “The Role of Natural Resources in the Western Sahara Conflict” (pp. 30–31), by Toby Shelly and Karin Sheele, respectively.

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  • Riquelme Cortado, Rosa. “La soberanía permanente del pueblo saharaui sobre sus recursos naturales.” Cursos de Derecho Internacional y Relaciones Internacionales de Vitoria-Gasteiz 31 (2011): 387–451.

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    Examines in detail the issue of the legality of the exploitation of natural resources with special emphasis on phosphates, hydrocarbons, and fishery; stresses the unlawfulness of fishery relations between the European Union and Morocco in light of the requirement of respect for Sahrawi natural resources.

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Relationship with the Use of Force

The prohibition of the use of force as enshrined in Article 2, paragraph 4, of the Charter of the United Nations takes on a new dimension when, as a peremptory norm of general international law, it is addressed in light of the principle of self-determination in contexts of occupation. A good example of this is that use of force and all forms of repression by the occupying power with the purpose of hampering the exercise of the right to self-determination are contrary to the principle in question. Conversely, armed struggles of national liberation movements and the support provided by third parties, outlawed by the administering power, are legitimated. Furthermore, national liberation movements have been considered legitimate representatives of colonial peoples, even sometimes as observers in related international organizations, although not without controversy (see also Regional Status and Relations). In the same vein, an additional fundamental principle of decolonization law stems from the respect for the integrity of the territory of the colony, which cannot be altered in any manner by the administering power. The case of the Polisario Front in the conflict of Western Sahara is reviewed in Mundy 2009. The question of the legality of occupation and third parties’ support is addressed in Payne 1993.

  • Mundy, Jacob. “The Morocco-Polisario War for Western Sahara, 1975–1991.” In Conflict and Insurgency in the Contemporary Middle East. Edited by Barry Rubin, 209–231. Milton Park, UK: Routledge, 2009.

    DOI: 10.4324/9780203881873Save Citation »Export Citation »E-mail Citation »

    Offers an analysis of the role played by the Polisario Front throughout the conflict; the monograph provides a comprehensive study on revolutionary groups, civil conflicts, and conventional wars in the region.

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  • Payne, Beth A. “The Western Sahara: International Legal Issues.” In International Dimensions of the Western Sahara Conflict. Edited by Yahia H. Zoubir and Daniel Volman, 127–150. Westport, CT: Praeger, 1993.

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    Argues that Morocco’s occupation is contrary to the resolutions adopted by the United Nations; understands US military support of Morocco as a violation of both international and American domestic law.

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Human Rights and Humanitarian Issues

The situation of human rights and international humanitarian law in Western Sahara is deeply affected by the prolonged situation of conflict and occupation. This cause-and-effect relationship has long been addressed by independent sources, international organizations, and nongovernmental organizations, which have long been addressing the situation of human rights in Western Sahara. The particular conditions of refugees on the one hand and the quest for accountability mechanisms outside the territory on the other are two issues that, together with some key human rights reports, will be addressed in further detail in the sections Refugees and Refugee Camps, Universal Jurisdiction, and Human Rights Reports.

Refugees and Refugee Camps

One of the most obvious and visible implications of the conflict between Western Sahara and Morocco is the large number of Sahrawi refugees who have been settled in camps. Despite the existing regional and international norms governing the protection of refugees, the situation in terms of freedoms and rights, as well as the precarious living conditions in the camps, continues to be a source of concern in literature on Western Sahara. The human rights situation in the occupied territories of Western Sahara has also attracted increasing attention from legal commentators. In this respect, Goldstein 2010 examines the reports submitted by Human Rights Watch. Riquelme 2012 explores the situation of human rights in light of the case of Haidar and the dismantling of the Agadym Izid camp. Beristáin and González Hidalgo 2012 and Casla, et al. 2008 discuss human rights violations in Western Sahara and their consequences, not only in the occupied territories but also in the refugee camps. Chinkin 2010 examines Morocco’s obligations as an occupying power.

  • Beristáin, Carlos Martín, and Eloísa González Hidalgo, eds. El oasis de la memoria: Memoria histórica y violaciones de los derechos humanos en el Sahara Occidental. Bilbao, Spain: Hegoa, 2012.

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    The most complete study so far on the human rights situation in Western Sahara, from the Green March and the occupation of the territory up to the present day, with an analysis of its consequences on both individuals and Sahrawi society as a whole.

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  • Casla, Koslo, Jesus Garay, Malen Vilches, Carlos Martín Beristain, Juan Francisco Soroeta, and Jose María Anda. La situación de los derechos humanos en los territorios del Sahara Occidental. Vitoria-Gasteiz, Spain: Servicio Central de Publicaciones del Gobierno Vasco, 2008.

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    Examines the human rights situation in the occupied territories, focusing on the years 2006 and 2007, with special reference to Morocco’s responsibilities, the responsibilities of the international community, and corporate responsibilities.

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  • Chinkin, Christine. “Laws of Occupation.” In Conference on Multilateralism and International Law with Western Sahara as a Case Study: Pretoria, South Africa, 4 and 5 December 2008. Edited by Neville Botha, Michèle Olivier, and Delarey van Tonder. Pretoria, 196–221. South Africa: VerLoren van Themaat Centre, 2010.

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    Undertakes an analysis of the positions of the parties in the territory, with special emphasis on Morocco’s obligations as occupying power, in particular in relation to humanitarian law and international human rights law.

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  • Goldstein, Eric. “Human Rights in Western Sahara and in the Tindouf Refugee Camps: A Commentary.” Revue Belge de Droit International 43 (2010): 30–35.

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    The research director of Middle East and North Africa Division of Human Rights Watch comments on the report submitted by Human Rights Watch on the situation of human rights in Morocco in 2008, which highlights the violations committed in Western Sahara.

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  • Riquelme Cortado, Rosa. “Derechos humanos y recursos naturales a la sombra de la berma.” In Estudios de Derecho Internacional y Derecho Europeo en homenaje al profesor Manuel Pérez González. 2 vols. Edited by Jorge Cardona, Jorge Antonio Pueyo, José Luis Rodríguez-Villasante, and José Manuel Sobrino, 1167–1194. Valencia, Spain: Tirant lo Blanch, 2012.

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    In light of the exploitation of Sahrawi natural resources by Morocco and third-party countries that trade with the occupying power, offers a two-tiered analysis from the standpoints of civil and political rights and economic, social, and cultural rights.

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Universal Jurisdiction

Prosecuting gross violations of human rights in Western Sahara before domestic courts or tribunals becomes a thorny issue given the stalemate not only at the national level but also regionally and internationally. In this regard, the principle of universal jurisdiction has been pointed out as a potential, if controversial, legal avenue to remedy the prevailing situation of impunity in the non-self-governing territory. The possibility that competent tribunals or courts of third-party states activate their jurisdiction in order to prosecute the most serious human rights violations committed in Western Sahara is reviewed in Chapaux 2010. An analysis of the Belgian treatment of the principle is afforded in David 2010. Peyró Llopis 2010 offers an overview of the principle through the existing legal proceedings in Spain.

  • Chapaux, Vincent, ed. Western Sahara: Which Legal Remedies for Peoples under Foreign Domination? Brussels: Bruylant, 2010.

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    Addresses a broad variety of issues including the situation of human rights and the relationship between international law and realpolitik; puts a premium on the principle of universal jurisdiction and its applicability to the Sahrawi case.

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  • David, Eric. “L’exercice de la compétence universelle en Belgique dans le cas du Sahara Occidental.” Revue Belge de Droit International 43 (2010): 36–42.

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    Rests on the premise that the principle of universal jurisdiction applies in the case of Western Sahara regardless of whether the criterion of nationality is fulfilled; the author examines the criteria and procedure established in the Belgian judicial system in this regard.

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  • Peyró Llopis, Ana. “Le Sahara occidental face à la compétence universelle en Espagne.” Revue Belge de Droit International 43 (2010): 61–74.

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    Reviews the legal proceedings in Spain involving crimes against humanity committed in Western Sahara by Moroccan authorities, members of the Polisario Front, and Algerian authorities; also estimates the eventual impact of Spanish legal reforms.

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Human Rights Reports

Human rights reports help deepen the understanding of the situation in Western Sahara in all its key dimensions, with special attention to freedoms, rights, and refugees. In this vein, the handling of primary documents issued by various regional and international organizations is of particular relevance for understanding Western Sahara in terms of human rights and humanitarian issues. In the case of the United Nations, in addition to the international instruments (see also Instruments), useful references include the reports submitted by the Human Rights Committee and Office of the High Representative for Human Rights. As for the European Union, the European Parliament has been the most active institution in producing reports not only on general issues but also on tense or specific conflict-ridden situations (see also European Union–Morocco Relations). In 2005 there was a popular uprising in the occupied territories (termed the “Sahrawi Intifada” by the local population); the Resolution on Human Rights in Western Sahara of 27 October 2005 (European Union 2005), which asks Morocco to protect the rights and freedoms of Sahrawi people, reflects the parliament’s standing concern over the human rights situation of the population, and in particular at the time of such serious events. The Rapport de M. Ioannis Kasoulides, Président de la Délégation ad-hoc pour le Sahara occidental (European Union 2009) is further evidence of this concern. The European Parliament Resolution of 25 November 2010 (European Union, European Parliament 2010) criticizes the violent destruction of the Agadym Izid camp by the Moroccan army. The UN Human Rights Council also issued recommendations to Morocco on the matter (United Nations Human Rights Council 2012a, United Nations Human Rights Council 2012b, United Nations Human Rights Council 2012c). There was a similar reaction from the Office of the High Representative for Human Rights (United Nations Office of the High Representative for Human Rights 2006).

Comparative Perspectives

Comparative approaches to the situation in Western Sahara have given rise to a broad variety of works providing analysis on territories under similar domination or situations of occupation, with the difference being that in the latter cases independence and admission to membership in the United Nations have been achieved. This is true, for example, of East Timor (today Timor-Leste), which has been the subject of a good number of studies. In this vein, Ferrer Lloret 2002 outlines the parallels between these two conflicts and underlines the different positions adopted by the United Nations, and the Security Council in particular (see also Parties to the Conflict). Zunes 2007 compares these two situations in terms of occupation. The doctrine of nonrecognition in cases of illegal exploitation of natural resources is addressed in Symmons 2009 (see also Permanent Sovereignty over Natural Resources). This approach is also employed, if briefly, in Pinto Leite 2006. In addition to East Timor, Epstein 2009 reviews the case of Kosovo in order to identify the core elements of statehood and relate them to Western Sahara. An account of the efforts made by the Organization of African Union (OAU) to achieve peace in Chad and Western Sahara before the establishment of the MINURSO is offered in Naldi 1985 (see also Sahrawi Arab Democratic Republic (SADR) and Admission in the Organization of African Unity). UN positions in Palestine, Namibia, and Western Sahara are scrutinized in Koury 2011.

  • Epstein, Pamela. “Behind Closed Doors: ‘Autonomous Colonization’ in Post United Nations Era: The Case for Western Sahara.” Annual Survey of International and Comparative Law 15 (2009): 107–143.

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    In addition to providing bird’s-eye view of the conflict, reviews the criteria for determining the elements of statehood and the right to self-determination in Western Sahara in light of the experiences of East Timor and Kosovo.

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  • Ferrer Lloret, Jaume. La aplicación del principio de autodeterminación de los pueblos: Sahara Occidental y Timor Oriental. San Vicente del Raspeig, Spain: Servicio de Publicaciones de la Universidad de Alicante, 2002.

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    Considers the experiences of East Timor and Western Sahara as similar situations that should result in the same solution: the applicability of the right to self-determination.

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  • Koury, Stephanie. “Legal Strategies at the United Nations: A Comparative Look at Namibia, Western Sahara and Palestine.” In International Law and the Israeli-Palestinian Conflict: A Rights-Based Approach to Middle East Peace. Edited by Susan M. Akram, Michael Dumper, Michael Lynk, and Iain Scobbie, 147–183. New York: Routledge, 2011.

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    Reviews the principle of self-determination and the element of occupation in light of the similarities and differences of the three cases; also analyzes the role played by the advisory function of International Court of Justice and the legal and political strategies to influence UN decisions.

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  • Naldi, G. J. “Peace-Keeping Attempts by the Organisation of African Unity.” International and Comparative Law Quarterly 34 (1985): 593–601.

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    Addresses the peace-keeping function of the OAU, with particular reference to Chad and Western Sahara; in the latter case, committees have been established to implement a negotiated settlement plan in conformity with the right to self-determination.

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  • Pinto Leite, Pedro. “International Legality versus Realpolitik: The Cases of Western Sahara and East Timor.” In The Western Sahara Conflict: The Role of Natural Resources in Decolonization. Edited by Claes Olsson, 11–16. Current African Issues 33. Uppsala, Sweden: Nordic Africa Institute, 2006.

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    Argues that the exercise of self-determination by the Sahrawi people is the only existing alternative to facilitate the resolution of the conflict; until this happens, wealth and natural resources should be protected from governments having particular interests in the region, especially France and Morocco.

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  • Symmons, Clive R. “Denial of Self-Determination and Utilisation of Natural Resources by an Illegal Occupier of Territory: The Role of Non-Recognition in such Instances in the Light of the ‘East Timor’ Case and the Situation in Western Sahara.” In Timor-Leste: Challenges for Justice and Human Rights in the Shadow of the Past. Edited by William Binchy, 317–362. Dublin, Ireland: Clarus, 2009.

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    Reviews the doctrine of nonrecognition in situations contravening norms of general international law; particular reference is made to the principle of permanent sovereignty over natural resources.

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  • Zunes, Stephen. “East Timor and Western Sahara: A Comparative Analysis on Prospects for Self-Determination.” In International Law and the Question of Western Sahara. Edited by Karin Arts and Pedro Pinto Leite, 109–133. Leiden, The Netherlands: International Platform of Jurist for East Timor (IPJET), 2007.

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    Draws a parallel between East Timor and Western Sahara; special emphasis is placed on military occupation.

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LAST MODIFIED: 10/29/2013

DOI: 10.1093/OBO/9780199796953-0095

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