International Institute for Justice and Development


Legal Rights Owed to the Sahrawi: Self-Determination and Use of Natural Resources

Posted on November 07, 2012

By: Erica Miller

 

Introduction

Self-determination has been a point of contention for the Sahrawi people since the UN encouraged Spain to decolonize the territory in the 1970s. In lieu of a referendum on self-determination, Spain ceded administrative control of the territory to Morocco and Mauritania, two nations that asserted claims over regions in the occupied territory. This did not change the status of Western Sahara as a non-self-governing territory, and prolonged the referendum. After a war in which the Frente POLISARIO was victorious, Mauritania and the Frente POLISARIO entered into an agreement in which Mauritania renounced all claims over Western Sahara. This gave the Frente POLISARIO control over approximately one-third of the territory, leaving Morocco with the other two-thirds. Morocco maintains the position that it has the legal right to control Western Sahara, and currently controls not only the government, but the natural resources as well.

Western Sahara is an area rich in natural resources. Morocco currently controls the majority of Western Sahara’s natural resources in the form of fisheries, phosphates and iron ore, and other resources. The Sahrawi have little access to these resources, as many of the workers are Moroccan citizens who immigrated to Western Sahara to work in the industries. Resources originating from the territory of Western Sahara are marketed by the Moroccan government as originating from Morocco, and companies wishing to take advantage of the resources present in the territory contract through the Moroccan government or Moroccan businesses. The Sahrawi have no control over the natural resources and the commerce from those resources in the Moroccan occupied territory. The Moroccan government controls the entirety of the coastline, preventing many Sahrawi from fishing, a lucrative industry.

 

The Right to Self-Determination

UN Charter Chapter XI: Declaration Regarding Non-Self-Governing Territories (Articles 73 and 74) states that Member States assuming the responsibility for administration of a non-self-governing territory have certain obligations over that territory and its peoples. Most notably, Article 73 of the UN Charter requires those Member States to ensure the “political, economic, social and educational advancement…just treatment, and … protection against abuses” of the peoples of that territory.  In 1960, the United Nations General Assembly (UNGA) adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples. This declaration, more commonly referred to as the Declaration on Decolonization recognizes the principles set forth in the UN Charter to promote fundamental human rights and self-determination of all peoples. 

The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), entered into force on March 23, 1976, states in Article 1 that all peoples have the right to self determination, and all peoples may freely dispose of their “natural wealth and resources… [and in] no case may a people be deprived of its own means of subsistence.” Article 47 reaffirms the inherent right of all peoples to fully utilize and enjoy their natural wealth and resources. Morocco is a party to both the ICCPR and the ICESCR. Under international law, parties to a treaty must adhere to all obligations created by that treaty. By asserting control over Western Sahara, Morocco has failed to carry out its obligations under both treaties.

 

The Right to Use and Control of Natural Resources

The right of the Sahrawi to utilize their natural resources is supported by several international instruments. Morocco controls two-thirds of Western Sahara including the entire coastline. Moroccan controlled mines employ predominantly Moroccan employees, take phosphorus belonging to the Sahrawi and sell it to foreign companies under the Moroccan name.

The UN has adopted over eighty resolutions related to sovereignty over natural resources. General Assembly Resolution 1803 (XVII), passed in 1962 states, “the right of the peoples and nations to permanent sovereignty over their natural wealth and resources must be exercise in the interest of the national development and of the well-being of the people of the State concerned.”

The Office of the High Commissioner for Human Rights investigated the human rights situation in Western Sahara in 2006.  The report was never officially published, but it was leaked.  The report noted that in the Moroccan territory, “the Sahrawi people are not only denied their right to self-determination, but equally are severely restricted from exercising a series of other rights.”  The UN Legal Counsel addressed the Security Council in 2002 stating that the use of mineral resources by an administering power of a non-self-governing territory is legal unless “conducted in disregard of the needs and interests of the people of that territory.”

In 2007, Morocco entered into the Fisheries Partnership Agreement (hereinafter “the Agreement”). The Agreement, made without regard for the Sahrawi people, permits European countries to fish commercially along the coastlines of Western Sahara, with all proceeds from the commerce going to Morocco. The first fishing agreement between Morocco and the European Union dates back to 1995. While there has been recent conflict over the Agreement, the problem is economical, and not based on the unfairness or the agreement. Last year, several members of the European Parliament wanted the renewal proposal to be referred to the European Court of Justice to make a ruling on the inclusion of Western Sahara in the Agreement. This ruling would look at whether the inclusion of Western Sahara mirrored the wishes of the Sahrawi and whether their interests were taken into account, as required by treaties and international law. This was rejected by the plenary of the European Parliament. The reasons cited for the rejection and ultimate renewal were predominately economic.

States that trade with Morocco have to decide whether to participate in the exploitation of the natural resources in Western Sahara. Some states have spoken out against Morocco’s use of Western Sahara’s resources. In a speech to the Swedish Parliament, the Minister of Foreign Affairs, Carl Bildt stated that Morocco occupies the territory of Western Sahara, and therefore “has no right to exploit the natural resources in Western Sahara for its own benefit.”

 

Conclusion

Decolonization has reached every former territory with the exception of Western Sahara. The Sahrawi should be afforded the right to self-determination, a right not only enjoyed by the rest of the world’s population, but also supported in international instruments. More than fifty years after the Declaration on Decolonization, the Sahrawi are still waiting to obtain the right afforded to them by law.

The right to control over natural resources is important because it was recognized that without it, the right of self-determination was being compromised. Self-determination is connected on a fundamental level to the right to control one’s own resources in addition to controlling one’s own government.

Morocco must not maintain their illegal control over the government, land and peoples of Western Sahara. The Sahrawi have the rights to establish their own government and use their natural resources for their own benefit. The Organization of African Unity took a firm stand on this issue, but the majority of the international community has continued to ignore the violations that Morocco is committing against the Sahrawi; it is important to remember that these rights do exist and that something must be done to protect them.