Western Sahara and the Self-Determination Debate

by Samuel J. Spector
Middle East Quarterly
Summer 2009, pp. 33-43

http://www.meforum.org/2400/western-sahara-self-determination

The dispute over Western Sahara, a sparsely-populated territory along the Atlantic coast between Morocco and Mauritania, is as much a struggle over the potency of international law as it is a row over land. The right to national self-determination, it is often argued, dictates a pathway out of the current diplomatic stalemate. This path could be taken by holding a United Nations-supervised plebiscite to enable the territory's residents to determine their own political future.[1] Yet, from a legal perspective, national self-determination does not necessarily offer a one-size-fits-all remedy, let alone a helpful framework, for the settlement of conflicting claims and grievances over disputed territories.

While Western Sahara is hardly at the forefront of U.S. or European policy, any resolution to its claims will be important as it may create a precedent for Palestinian claims to national self-determination in territories disputed with Israel, or to Kurdish claims to self-determination in Turkish, Syrian, Iraqi, and Iranian territory. Proponents of nationalist struggle or secession often argue that their cause is not only just but is validated by national self-determination. This they conceive of as an unassailable principle of international law justifying not only the ends but also any means used to achieve them. However, not only is the common conception of self-determination incomplete in international law, but it has actually hampered international law's development as an authoritative body of law capable of resolving disputes between countries.

Western Sahara's Troubled History

Western Sahara hugs the Atlantic Coast between Morocco and Mauritania. It is more than twice the size of New York state, but the Central Intelligence Agency estimates its population at just over 400,000, only about one-fiftieth of that of New York and less than that of any single U.S. state or the District of Columbia.[2] More than half of Western Sahara's population lives in Laayoune, a small town just thirty miles from the internationally-recognized Moroccan border.

The territory is as desolate in resources as it is in population. There is no arable land and while the region boasts phosphate deposits, much of its economic potential comes from fishing off its 700-mile coastline. The marginality of the land condemned the region to peripheral status in history. While empires rose and fell to the north, south, and east, Western Sahara was always a backwater. Caravans passed through the territory, tribes slowly Islamized, and various North African Islamic dynasties—the Berber Almoravids (1040-1147) and Almohads (1121-1269), for example, exerted some control. Nevertheless, the region remained largely nomadic and free from central authority.

Spain seized the territory after the 1884 Berlin Conference and while Madrid sent governors and engaged in some construction, the area proved less profitable than other European colonies and little development occurred. Spain finally abandoned its territory in 1975, after which both Morocco and Mauritania—each stating historical claims but motivated more by a hope that the territory would hold oil—claimed the region. Morocco went further, however, and sent Moroccan settlers into the region. While natives of the region and international backers continue to argue that Western Sahara should be independent, Rabat has firmly insisted that the territory should remain under its control.

What Is the Principle of Self-Determination?

The notion of self-determination as a universal principle, whether viewed through a political, moral, or legal lens, has been, and continues to be imprecise and in dire need of further clarification. U.S. president Woodrow Wilson understood self-determination to be the belief that every people had the right to select its own form of government, to "choose the sovereignty under which they shall live," and thus be free of alien masters.[3] Although there was initially disagreement as to who precisely is the "self" to which the right of self-determination refers, the Versailles Peace Conference linked self-determination with the "principle of nationalities," or an ethnographic view of the "self."[4]

While Palestinians, Kurds, and other peoples without an independent state like to root their claims to sovereignty in the United Nations, the U.N. Charter added little clarity to existing notions of self-determination in international law. The document refers only twice to the "principle of equal rights and self-determination of peoples," and then only in a preamble to a statement of the broader purpose of the organization.[5] Such passing references stand in stark contrast to the operative principles of the charter that spoke of the need for its member states to refrain from "the threat or use of force against the territorial integrity or political independence of any state" and ruled out U.N. intervention in "matters which are essentially within the domestic jurisdiction of any state."[6]

It was not until 1960 with the passage of the U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples[7] that self-determination began to develop coherence as a principle. It envisioned full self-determination as a goal for all peoples subject to "alien subjugation, domination, and exploitation," intolerable political living conditions which it identifies as a denial of a people's fundamental human rights.[8] This theory of self-determination presumed that the majority of inhabitants in any colony would be free to choose their future political status although the integrity of established national boundaries would continue to be respected.[9] Third World leaders, putting aside tribal claims that could result in a wholesale redrawing of maps, largely accepted the importance of recognized borders. Such boundaries were viewed as the essential building blocks of stable self-government, helping to guard against the absorption by another state or the dismemberment of a territory against the will of the majority of its inhabitants.[10]

U.N. General Assembly resolutions 1514 and 1541 set out three means by which a territory could achieve self-government. These were emergence as a sovereign independent state, free association with an independent state, or integration with an independent state.[11] The 1970 Declaration of the U.N. Special Committee on Friendly Relations reinforced the position that there were legitimate outcomes of self-determination apart from independence, so long as these outcomes reflected the freely expressed choice of people in colonized territories.[12] The creation in 1961 of the U.N. Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples set out a supervisory role for the U.N. in the final stages of the self-determination process. In this process, a colonial power would request that the U.N. supervise a self-determination referendum so as to ensure an orderly transition through decolonization to whatever form of state the local population chose.[13]

The uncertain status of self-determination in international law continues to spark debate. An early community of legal "formalists" argued that self-determination was incompatible with international law because all states with a right to membership in the international system were already members.[14] Under such logic, Bosnia, Kosovo, and East Timor, should not enjoy independence. Other international legal scholars argue that the concept of self-determination may not yet be a legal norm, but it is nevertheless necessary to recognize that it is evolving in that direction.

In the post-World War II era, "equality theory" became predominant. Its proponents held that the right of dominated peoples to achieve equality in relation to those who dominate them removed self-determination from the realm of abstract legal norms and transformed it into a universal right (although one applied selectively to instances in which a non-Western population has been subject to European colonial domination).[15]

Not all scholars and officials accept equality theory, however. Critics point out the arbitrariness used in determining the "colonial" or "alien" label.[16] Ali Mazrui, a scholar of African studies and director of the Institute of Global Cultural Studies at Binghamton University, for example, noted that "the definition of colonialism as subjugation to alien rule" has been "of a very relative character," depending "not on whether the ruler is alien, but on whether in being alien … [he] is also European."[17] Addressing the U.N. General Assembly in 1961, Lord Home, then-foreign secretary of the United Kingdom, articulated this concern, asking, "Is there to be one principle for Asia and Africa and another for Europe? One rule for the British Commonwealth and another for the Russian Empire? I thought if a principle was anything, it was universal."[18]

Likewise, Thomas Franck, an emeritus professor of law at New York University, argued that drawing artificial distinctions between situations that are otherwise so similar eroded the legitimacy of the concept and called for it to be applied coherently and consistently if it were to be hailed as law.[19] Some scholars have questioned whether a decolonization or equality model for self-determination has outlived its usefulness. Gerry Simpson, a professor of public international law at the London School of Economics, argued that "the decolonization model is a demonstrably unwieldy and inflexible device" when applied to cases of "indigenous, nationalist, secessionist, democratic, and devolutionary self-determination."[20]

Situations involving minority populations seeking to secede from a sovereign state also render irrelevant traditional conceptions of self-determination.[21] In such cases, in the absence of a history of Western colonization of that territory, the doctrine of uti possidetis (the maintenance of colonial borders) prevails over any conflicting interest in achieving ethnic autonomy.[22] Thus, until the Russian invasion in 2008 resolved the matter by force, international lawyers could not assist the desire of South Ossetians in Georgia to unite with their kin in Russia.[23]

The era of decolonization has largely passed. Today, fresh ethno-national conflicts within established states have called into question how useful the traditional conception of self-determination is. Moreover, they raise questions about whether any international legal consensus can provide guidance in situations that involve states ruling over adjacent territories. The short answer to those questions is "no" as reflected in the discrepancy between the strong international support for self-determination in East Timor (Timor Leste), which gained its independence from Indonesia in 2002, and more muted calls for self-determination in such classic cases as Kashmir and Western Sahara.[24]

The Western Sahara Case

Western Sahara provides an interesting test case in just how divided the world remains on whether to support self-determination in a territory amid a neighboring state's irredentist claims.[25] In the case of Western Sahara, for example, Morocco and Mauritania have laid claim to its territory even as Spain and Algeria support its independence. The paralysis in resolving the Western Sahara dispute is a result, on the one hand, of battlefield reality and, on the other, the fact that, despite the passage of time and the consequent development of the law in response to new realities, there are no objective criteria that would lead to the preference of one claim over another.[26]

Claims to Western Sahara are multilayered. The Berlin Conference, hosted by Otto von Bismarck in November 1884 for the purpose of carving up the African continent among the European powers, ended with the Western Sahara territory allocated to Spain. Spain colonized the territory in 1884 and held it as a Spanish protectorate. From 1961 onwards, Spain administered Western Sahara as a non-self-governing territory under Chapter XI of the U.N. Charter. This implicitly recognized the right of its inhabitants to self-determination.[27] Meanwhile, neighboring Morocco gained its independence from France in 1956, and Algeria followed soon after in 1962.

In 1966, the U.N. General Assembly reaffirmed the right to self-determination of the peoples of the Spanish Sahara[28] and requested Spain, in consultation with other interested parties including the governments of Morocco and Mauritania, to establish procedures "for the holding of a referendum under United Nations auspices with a view to enabling the indigenous population of the Territory to exercise freely its right to self-determination."[29]

Spain, Morocco, and Mauritania, however, essentially colluded to postpone the referendum.[30] After Spain announced that it would hold a referendum under U.N. auspices in 1975, the U.N. General Assembly, at Morocco's urging, requested that the International Court of Justice determine two things: "(1) Was Western Sahara … at the time of colonization by Spain a territory belonging to no one (terra nullius)?" and, if not, "(2) What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?"[31]

Spain and Algeria took the position that the "questions formulated … were, from a legal standpoint, ambiguous, incomplete, and irrelevant, since they failed to take into account the development of contemporary international law in relation to Non-Self-Governing Territories."[32] Nevertheless, the International Court of Justice accepted the case[33] and, in an advisory opinion, ruled unanimously on the first question that at the time of colonization by Spain, Western Sahara was not terra nullius.[34] As to the second question, the court acknowledged that its opinion on the question of historic title should in no way be seen as detracting from the fundamental right of self-determination of the people of Western Sahara.[35]

The court ultimately ruled that Morocco and Mauritania did not have a valid claim to Western Sahara based on historic title, dealing a blow to the "automatic retrocession" to their own control which both demanded.[36] However, reference to Morocco's "legal ties" to the territory shifted the terms of the debate. By construing "legal ties" as broader than mere ties of territorial sovereignty, the court "blurred the line between 'self' and 'territory' arguments that it had drawn by equating the right of self-determination with the free will of the colonial population, and legal ties with pre-colonial claims to territory."[37] Such a finding arguably weakened rather than bolstered the "strength and universality of the principle of self-determination."[38]

From an international law perspective, the court ruling opened the door to arguments that challenged the paradigm framing the rules on the acquisition of sovereignty over territory at the time.[39] Abdeslam Maghraoui, a professor of comparative politics at Duke University, divided Morocco's counter-narrative into three distinct categories: (1) historical ties of sovereignty between Moroccan sultans and Saharan tribes; (2) treaties and colonial records recognizing Morocco's territorial integrity and its control over the Saharan provinces; and (3) Morocco's efforts to help liberate the southern provinces from Spanish colonial rule after 1956.[40] European states might concentrate power territorially, but Morocco in effect argued that in its nomadic Western Sahara context, tribal and religious connections should be paramount.[41]

Maghraoui acknowledged that, before European colonization, the authority of Moroccan sultans "did not extend evenly and consistently to all territories they considered to be under their sovereignty" but, nevertheless, he argued that official representatives appointed through royal decrees operated throughout the distant Saharan territories within the framework of the sultan's administrative apparatus.[42] Morocco's occupation of Western Sahara would, in its view, help reconstitute an empire that it had lost at the time of the Spanish colonization of its territory and thus vindicate its historic title to the territory.[43] Rabat's prioritization of relations between states and tribes interpreted sovereignty according to a pre-modern state structure rather than the modern mechanisms.[44] Two justices, Isaac Forster of Senegal and Fouad Ammoun of Lebanon, offered separate opinions that challenged the international court's pro-Sahrawi independence leanings and instead proposed that the Moroccan counter-narrative, rooted in Morocco's pre-colonial historical ties of sovereignty to Western Sahara, as well as its claim of decolonization by "reversion to former sovereignty,"[45] be accorded appropriate emphasis in arriving at the court's decision.

The Moroccan response was quick. The day after the international court published its advisory opinion, Morocco put the international community on notice that it would march 350,000 "unarmed civilians" from Morocco southward into Western Sahara "to gain recognition of [Morocco's] right to national unity and territorial integrity." It had concluded that, rather than rejecting its historic and legal claims to the territory, the advisory opinion had in fact endorsed them.[46]

Facts on the ground matter. Morocco, Mauritania, and Spain initiated tripartite negotiations. The resulting Madrid agreement amounted to a Spanish endorsement of a decolonization formula that involved partition of the territory between Morocco and Mauritania.[47] U.N. General Assembly Resolution 3458A, adopted by the General Assembly on December 10, 1975, reaffirmed the right of the inhabitants of Western Sahara to self-determination but also noted the Madrid agreement and called for further consultations with the territory's population without offering any formal timetable or condemnation of Moroccan actions.[48] In effect, this set the stage for decades of stalemate.

Algeria and Morocco, meanwhile, pursued a diplomatic and at times military proxy war over the territory.[49] Algeria provided support, for example, to the Frente Popular de Liberación de Saguía el Hamra y Río de Oro (Polisario), a guerilla organization that sought to obtain international recognition of the territory's independence from Morocco. Algerian policy aimed to keep Moroccan forces bogged down in the territory while harming its neighbor's standing in the international arena where the rights of the disputing parties were widely debated. After the Algerian government recognized the Sahrawi Arab Democratic Republic in February 1976, Morocco broke off diplomatic ties with its eastern neighbor.[50] Through the late 1980s, Algeria assisted the Polisario with money, arms, and diplomatic support although Moroccan military superiority ultimately rendered the Polisario little more than a government-in-exile in western Algeria.[51] While Morocco and the Polisario agreed, in principle, to a referendum, preparations for this became bogged down in a dispute over the identification of Sahrawis eligible to vote in any self-determination poll.

Former U.S. secretary of state James A. Baker III, acting as personal envoy to U.N. secretary-general Kofi Annan, outlined three possible outcomes of a final status referendum in the territory: independence, autonomy, and full integration into Morocco. But Rabat continued to balk at any plan that explicitly offered independence.[52] Morocco instead proposed creation of a "Sahara Autonomous Region," which it updated in April 2007 with the introduction of the "Moroccan Initiative for Negotiating an Autonomy Status for the Sahara."[53] While the U.N. Security Council says that the two sides should negotiate without preconditions,[54] the council has, in fact, itself stated two preconditions: that talks should aim at achieving self-determination for the people of Western Sahara and that the U.N. should be in charge of the referendum.[55]

Not every organization agrees with the Security Council. While proponents of Western Sahara's independence say the dispute should be an open-and-shut case from the perspective of international law, given "the peremptory norm of international law with respect to decolonization,"[56] a body no less important than the International Crisis Group described the failure to break the deadlock to be the result of what it sees as the U.N.'s continuing focus on self-determination. Its report maintains:

By continuing to define the issue as self-determination, the U.N. has encouraged the Polisario Front and Algeria to continue to invest all their energy in seeking the realization of this principle and at the same time has pressured the Moroccan government to pay lip service to self-determination, when in reality Rabat has never sincerely subscribed to it. The U.N. thereby has inhibited the parties to the dispute from exploring the possibility of a resolution based on a different principle or set of principles.[57]

The International Crisis Group thus recognizes that self-determination is anything but a panacea for the resolution of conflicting sovereignty claims, as it offers a one-size-fits-all solution that may not be appropriate in the case of some present-day conflicts, including that being waged over Western Sahara.

The End of Self-Determination?

While the latter half of the twentieth century may have marked the predominance of equality theory, that same theory may not be as appropriate for resolving disputes in the twenty-first century. Claiming an absolute right to full "external" self-determination in the form of complete independence for the Sahrawi people while ignoring Morocco's interests in the matter has continued to block any meaningful diplomatic compromise.

Within the scholarly community, there is a growing realization that the law of self-determination as crystallized in the era of decolonization is inadequate to deal with modern disputes involving conflicting sovereignties. Conflagrations along ethno-national divides pit the indigenous inhabitants of former European colonies against each other for control of what were once colonial territories. Such conflagrations are more prevalent than they were while neocolonial disputes between majority and minority populations in the developing world have increasingly given rise to calls for more equitable treatment within existing states, as opposed to outright secession or independence. Accordingly, Gregory H. Fox, a visiting professor of law at Wayne State University Law School, notes that "with the effective end of decolonization and the virtually unanimous refusal of states to recognize a right of secession, the legal norm [of self-determination] appears to have been deprived of much of its content."[58]

According to Fox, trying to understand the right to self-determination within the decolonization period as "a vehicle for independent statehood" has been rendered essentially meaningless. This has led to a demand that self-determination be re-conceptualized as an "internal" right requiring a "reordering of a state's domestic law." This law operates along the lines of "minority protection regimes, democratic political processes, safeguards for cultural rights, and various forms of federative autonomy,"[59] but it stops short at redrawing state boundaries made necessary by independence or secession scenarios. Fox insists that the internal right to self-determination has been slowly gaining acceptance.[60] In his view, such a right acts as a general tool that allows a variety of particular rights to be joined together. This allows us "to demonstrate that a principled coexistence is possible between claims to group autonomy and the maintenance of states' territorial integrity." What must follow, in Fox's view, is the reframing of the rule of self-determination as a principle permitting greater flexibility in its interpretation and application.

Hurst Hannum, a professor of international law at the Fletcher School of Law and Diplomacy at Tufts University, is largely in agreement with Fox and articulates a new vision of self-determination within international law, a vision which "will support creative attempts to deal with conflicts over minority and majority rights before they escalate into civil war and demands for secession."[61] This right to autonomy is not an end in itself but rather a political tool to ensure that the rights and needs of the concerned population are properly addressed in light of their unique goals.[62] Self-determination must be addressed as a means to an end rather than an end in itself—"that end being a democratic, participatory political and economic system in which the rights of individuals and the identity of minority communities are protected."[63] For Gerry Simpson, the aim must be to save the principle of self-determination from its "descent into incoherence." At the core of its renewal is "the adoption of a more liberal and expansive interpretation of the right, incorporating autonomy, constitutional recognition, devolution, and cultural self-expression." He adds that "this proposal would galvanize self-determination and rescue it from the theoretical confusion and political misuse that have plagued it in recent decades."[64]

A redefinition of self-determination, Hannum contends, "may signal a new usefulness for the concept of self-determination in the decades to come"[65] insofar as it places human and minority rights before unilateral secession. As the legitimacy of the principle of self-determination has been gradually eroded in the post-colonial era, a resurgence of self-determination along more creative, flexible lines might be precisely the boost that international law needs at the present day. A reformed right to self-determination, envisioned as a continuum of rights rather than an absolute entitlement to independence in all situations, will do its part to promote international stability, peace, and security.

Robin White, a professor of law at the University of Leicester, attributes harmful developments in the Western Sahara situation to an "exclusive focus" on independence as the "only solution" to colonial status.[66] White concludes that "had the United Nations worked on the criteria to be used in determining when the alternatives of association, integration, or some other political status would be appropriate, it is possible that there would have been greater room for manoeuvre and resort to unilateral unlawful acts inhibited."[67] Similarly, Michla Pomerance, professor of international law at the Hebrew University, argues that self-determination has become "not a continuum of rights, nor a universal principle applicable to 'all peoples,' but an 'all or nothing' proposition."[68] The challenge for the future of self-determination then is one of

Balancing conflicting principles, of maximizing individual and group rights while respecting the rights of other individuals and collectives and preserving international peace and security. Such complexity can only be handled by means of a flexible approach which sees self-determination as a continuum of rights, as a plethora of possible solutions, rather than as a rigid absolute right to full "external" self-determination in the form of complete independence … Independence, or other options, may need to be precluded—even if desired by the "self" concerned. Such alternatives as federal schemes, autonomy, minority rights [and] guarantees of non-discrimination … may present themselves as forms of self-determination best suited to the particular circumstances.[69]

Thus, the decolonization era understanding of self-determination, which has largely prevailed up to the present, and whose preferred winner-take-all outcome conveniently ignores crucial international, regional, and domestic realities, has become a recipe for stalemate and a possible threat to peace and diplomatic compromise. We can do better.

Conclusion

How, then, would an application of self-determination, redefined loosely along the lines described above, be achieved in the context of the Western Sahara dispute, and what might it look like?

As long as the diplomatic process over the future of Western Sahara remains saddled with the dual encumbrances of a U.N.-administered framework and a U.N. resolution on the basis of a strict notion of self-determination, the suitability of the U.N. system as the dispute's sole arbiter will continue to be called into question. By removing institutional and bureaucratic obstacles to advancement in solving the Western Sahara dispute—obstacles that the present U.N. framework has done much to perpetuate—the parties would be compelled to think in terms of creative solutions to decades-old problems. If that were to happen, they would take out of the equation a major incentive for political and diplomatic posturing that has until now stalled meaningful progress. An arrangement rooted in a realistic vision of autonomous self-government that would incorporate reasonable guarantees of cultural expression, political freedoms, and human rights for the inhabitants of Western Sahara might then be given a chance to take shape.

Indeed, such an approach holds out the potential for advancement in the resolution of other disputes involving conflicting claims of self-determination and sovereignty, including the Israeli-Palestinian conflict. Whereas international organizations have over the past sixty years served as uninterrupted debating societies with regard to the professed rights of the Palestinian people under international law, the fundamental frailty of the law concerning self-determination has largely frustrated efforts to translate mere legal pronouncements into actual on-the-ground progress. Arguably, the result has been the squandering of tremendous financial resources, institutional efforts, and time in support of a diplomatic course of action that is pervaded by "process" and high-minded legal "principle" yet often short on the substance and dynamism necessary to translate theory into practical, real-world compromise improving the everyday lives of ordinary people.

Self-determination must, therefore, be reframed in the present context as a continuum of rights affording the affected populations a range of democratic entitlements and humanitarian protections within existing sovereign states. The era when self-determination was synonymous with an absolute right to political independence has passed, and more flexible and creative bases for compromise between disputing parties are presently in order. In this spirit, the chairman of the U.N. General Assembly's Special Committee on Decolonization, Margaret Hughes Ferrari of Saint Vincent and the Grenadines, speaking at an October 8, 2007 meeting on the Western Sahara dispute, acknowledged that U.N. efforts concerning non-self-governing territories must recognize "that there is no magic formula of 'one-size fits all.'" Rather, she continued, a good faith effort to focus on tangible results would lead to the conclusion that "different territories have different needs and expectations and should be considered on a case-by-case basis."[70]

Samuel J. Spector is a graduate of Georgetown University Law Center. An earlier version of this essay won second prize in the Middle East Quarterly's 2008 Albert J. Wood Student Writing Contest.