Western Sahara Legal Status
In 1963 Western Sahara was listed as a non-self-governing territory by the United Nations. In 1966 the United Nations’ General Assembly adopted its first resolution2 on the territory, urging Spain to organise, as soon as possible and under UN supervision, a referendum on self- determination. In 1975, the International Court of Justice’s (ICJ) advisory opinion on the Western Sahara question concluded by 14 votes to 2, that while there had been pre-colonial ties between the territory of Western Sahara and Morocco, these ties did not imply Morocco’s sovereignty over Western Sahara. Thus, the Court did not find legal ties which 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.3
On 6 November 1975, Morocco occupied and later annexed Western Sahara, through the so- called “Green March”. This constituted an act of aggression and violated the UN Charter. The same day, the UN Security Council, in Resolution 380, called upon Morocco “immediately to withdraw all the participants in the march.” Shortly thereafter, Morocco, Mauritania and the colonial power Spain, entered into an agreement which transferred the administration of the territory to Morocco and Mauritania. The agreement did not, however, transfer sovereignty explicitly. (Mauretania later rescinded and left the whole territory to Morocco.)
The people of Western Sahara (the Saharawis) have a right to self-determination, which can be fulfilled through the creation of a fully sovereign state, if they so choose. Under that principle, they also have the right to “freely dispose of their natural wealth and resources”4. The Moroccan occupation and annexation of the territory is a serious breach of International Law. Western Sahara is not a part of Morocco and Morocco has no legal title or claim to the territory. Morocco has an obligation to respect the right of the people of Western Sahara to self-determination and to end its illegal annexation and occupation of Western Sahara.
UN General Assembly 1966
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1- UN General Assembly, 1966, Resolution 2229 (XXI).
2- ICJ Reports, 1975, p. 68, para. 162.
3- Common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
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Invites the administering Power to determine at the earliest possible date, in conformity with the aspirations of the indigenous people of Spanish Sahara and in consultation with the Governments of Mauritania and Morocco and any other interested party, the 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 and, to this end:
To create a favorable climate for the referendum to be conducted on an entirely free, democratic and impartial basis, by permitting inter alia, the return of exiles to the Territory;
To take all necessary steps to ensure that only indigenous people of the Territory participate in the referendum;
To refrain from any action likely to delay the process of the decolonization of Spanish Sahara; …”
UN-Security Council, 1975 (after the “Green March”)
“Call upon Morocco immediately to withdraw from the Territory of Western Sahara all the participants in the march; ….”
UN Security Council, 1991
“Expresses its full support for the efforts of the Secretary-General for the organization and the supervision, by the United Nations in cooperation with the Organization of African Unity, of a referendum for self-determination of the people of Western Sahara, in accordance with the objectives mentioned in this report; …”
UN-Security Council, 2013
“Reaffirming its commitment to assist the parties to achieve a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations, and noting the role and responsibilities of the parties in this respect, …”