By: Hans Corell, Former Under-Secretary-General for Legal
Affairs and the Legal Counsel of the United Nations
At the
request of the UN Security Council, I delivered a legal opinion to the Council
relating to Western Sahara on 29 January 2002. This I did in my capacity as the
Legal Counsel of the UN at the time. The opinion concerned the legality in the
context of international law of actions by the Moroccan authorities consisting
in the offering and signing of contracts with foreign companies for the exploration
of mineral resources in Western Sahara. My conclusion was that, if further
exploration and exploitation activities were to proceed in disregard of the
interests and wishes of the people of Western Sahara, they would be in
violation of the principles of international law applicable to mineral resource
activities in Non-Self-Governing Territories.
This
development happened 13 years ago. In the meantime, I have followed the
development in Western Sahara at a distance, in particular because of the Fisheries
Partnership Agreement concluded between the European Union (EU) and Morocco in
2007 and the protocols to that agreement. In my view this agreement is not in
conformity with international law as far as it concerns Western Sahara.
In early
December 2014, I was invited to address an international workshop on the topic The
European Union Approach Towards Western Sahara, organised by the University
of Bologna in the framework of the Italian Presidency of the European Union.
This made me take a closer look at the situation in the region again. In particular,
I focused on the question if the United Nations Mission for the Referendum in
Western Sahara (MINURSO), the Secretary-General and his Personal Envoy,
Ambassador Christopher Ross, had made any progress towards a solution of the
situation in Western Sahara. In that context I noted the obvious conflict
between the Security Council’s latest resolution on Western Sahara and the
attitude reflected in a speech to the Nation that King Mohammed VI of Morocco
delivered on 6 November 2014. This made me realise that the situation is very
serious indeed.
In this resolution
(S/RES/2152/2014 of 29 April 2014) the Security Council “calls upon the parties
to continue negotiations under the auspices of the Secretary-General without
preconditions and in good faith - - - with a view to achieving a just, lasting,
and mutually acceptable political solution, which will provide for the self-determination
of the people of Western Sahara (my emphasis) in the context of arrangements
consistent with the principles and purposes of the Charter of the United
Nations, and noting the role and responsibilities of the parties in this
respect.”
In his
speech, the King says that the Nation is “proudly celebrating the thirty-ninth anniversary
of the Green March” [Editor's note: The Green March was a ”strategic mass demonstration in November 1975,
coordinated by the Moroccan government, to force Spain to hand over the disputed, autonomous
semi-metropolitan Spanish Province of Sahara to Morocco.”] The problem is that this
occurrence was probably a violation of Article 49 of the Fourth Geneva
Convention, which prohibits an occupying power from deporting or transferring
parts of its own civilian population into the territory it occupies. The
following quote from the speech should be noted in particular:
We
say ‘No’ to the attempt to change the nature of this regional conflict and to present it as a decolonization issue. Morocco is in its Sahara and never was an occupying power or an administrative power.
In fact, it exercises its sovereignty over its territory;”
It is obvious that this speech is wholly incompatible with
the Council's resolution. It also clearly contradicts the 1975 advisory opinion
of the International Court of Justice in the case of Western Sahara (Western
Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12) in which the
Court found no legal ties of such a nature as might affect the application of
resolution 1514 (XV) in the decolonization of Western Sahara and, in
particular, of the principle of self-determination through the free and genuine
expression of the will of the peoples of the territory.
This brings to the forefront the question how the Security
Council now must deal with the situation in Western Sahara.
With
respect to the natural resources of Western Sahara the Council simply cannot
allow the present situation to continue. A very serious question in this
context is the fisheries agreement between the EU and Morocco which does not
contain one word – apart from the cryptic “sovereignty or jurisdiction” in
Article 2 (a) – about the fact that Morocco’s ‘jurisdiction’ in the waters of
Western Sahara is limited by the international rules on self-determination.
Instead the agreement and its protocols are replete with references to the
“Moroccan fishing zones”.
To be
legal, an agreement of this nature would have to contain an explicit reference
to the fishing zone off the coast of Western Sahara, defined by coordinates.
The regime for issuing fishing licences within this zone would have to be
completely separate from the regime that applies in the Moroccan fishing zone.
Furthermore, the revenues generated by the licences in the zone of Western
Sahara would have to be delivered not to Morocco’s public treasury or
equivalent but to a separate account that can be audited independently by
representatives of the people of Western Sahara so that they can ascertain that
the revenues are used solely in accordance with the needs and interests of
their people.
Against
this background, the Council should examine the legality of the EU-Morocco
fisheries agreement. The appropriate way to receive an authoritative answer to
this question is for the Council to request the International Court of Justice
to give an advisory opinion on the question in accordance with article 96 of
the UN Charter. In case the Council is unable to unite behind such action, the
General Assembly could take the initiative.
What is
said about fisheries applies also to other natural resources in Western Sahara,
such as phosphates, oil or gas, or other resources, be they renewable or
non-renewable. Against this background, the Security Council should adopt a
resolution laying down clear conditions for the exploration and exploitation of
natural resources in Western Sahara that comply with the General Assembly
resolutions adopted under the agenda item entitled “Implementation of the
Declaration on the Granting of Independence to Colonial Countries and Peoples”
and other relevant resolutions addressing activities of foreign economic and
other interests which impede the implementation of this Declaration.