Western Sahara remains an anomaly in the field of international law. In the eyes of the United Nations, it is a Non-Self Governing Territory with no administering power. However, even after an international promise of independence from colonization, Western Sahara is both an occupied and independent state. How did it get to this point, and who is responsible for the administration of Western Sahara? The answer is perhaps more complicated than expected: it is dependent on both the United Nations and regional bodies.
Like most countries in the region, Western Sahara’s modern history began with European colonization. Colonized by Spain from 1884 until the late 20th century, Western Sahara was declared a Non-Self Governing Territory in 1963 under UN General Assembly Resolution 1514 as part of a push towards decolonization. Non-Self Governing Territories are defined by the United Nations as “territories whose people have not yet attained a full measure of self-government.” The territories were meant as a way to force decolonization by assigning a country as an Administering Power that would assist in building the country towards self-governance.
Spain was assigned as the Administering Power over Western Sahara. In the 1970s, following an announcement of a referendum to determine the future of the region, both Morocco and Mauritania claimed a significant relationship with the region. That same year, a UN mission to Western Sahara determined that the indigenous people wished for independence.
In October 1975, the International Court of Justice (ICJ) released an advisory opinion on the issue, determined that there were no ties of “territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity” that would impact the decolonization process or the right to self-determination. Two days later, Morocco announced a march of hundreds of thousands of Moroccans into Western Sahara to establish a “right to national unity.” In the week following the march in November 1975, Spain, Morocco, and Mauritania released the “Madrid Accords,” which declared that Spain would remove itself as an Administering Power in Western Sahara. The Accords also established that Morocco, Spain, and Mauritania, as well as indigenous Sahrawi representatives, would work to install a temporary administration that would assume the duties previously held by Spain, granting Western Sahara self-governance at last.
However, the Madrid Accords failed to adequately consult the indigenous Sahrawi population. The Polisario (Frente Popular de Liberación de Saguía el Hamra y Río de Oro) arose as a voice for Sahrawi independence, and began gathering support from surrounding states. Following Spain’s withdrawal in February 1976, the Polisario formed the Sahrawi Arab Democratic Republic (“SADR”) and refused to acquiesce to the Madrid Accords. A conflict arose between the Moroccan and Mauritanian armies and the Polisario, displacing thousands of Sahrawi individuals. In 1979, Mauritania renounced its claim to the territory and withdrew, leaving the conflict to continue between the Polisario and Morocco until 1988.
Eventually, the United Nations drafted a cease-fire agreement, informally referred to as the Settlement Plan. The Settlement Plan temporarily stopped the fighting, intending to form a path towards the long-awaited referendum, granting self–determination to Western Sahara. The Settlement Plan was never fully realized because of a disagreement over the qualification of participants in the referendum: Morocco wanted those that had resided in the region since the conflict to have voting power, while the United Nations attempted to only give those that had resided in the region before Morocco’s invasion to have the power to vote. This led to the introduction of the Framework Agreement, assigning Morocco as the Administering Power over Western Sahara. The Framework Agreement expanded the qualifications for participation in the referendum, and added the possibility of becoming a semi-autonomous region within Morocco to the list of referendum options. It was rejected by the SADR, who proposed the Peace Plan, which would allow Western Sahara the opportunity for self-governance before the referendum. The Peace Plan was rejected by Morocco, leading to an eventual political stalemate regarding the chances of a referendum.
To this day, through the eyes of the United Nations, Western Sahara is neither an independent state nor an occupied territory. It remains a Non-Self Governing territory, though it has not had an Administering Power since Spain’s withdrawal in 1976. Without state status, it is unable to submit the dispute to the International Court of Justice, or become a member of the United Nations. It seems, despite historic anti-colonization efforts, the United Nations refers to Morocco regarding issues in the region, as evidenced by its most recent Universal Periodic Review of Morocco by the Human Rights Council.
The African Union, however, has a different approach to the region. Adopted in June 1981, The African Charter on Human and Peoples’ Rights, stated in no uncertain terms that all people “shall have the unquestionable and inalienable right to self-determination” and that “colonized or oppressed peoples shall have the right to free themselves from bonds of domination.” Shortly thereafter, in 1984, the then named Organization of African Unity recognized Western Sahara as an independent state and legitimized the SADR as a government. In response, Morocco officially left the OAU. From that time, Western Sahara was considered an independent state in the African Union, with the option to sign and ratify treaties, bring cases to regional courts, and vote on issues. However, following Morocco’s reentry into the African Union in 2017, the African Union has generally deferred to the United Nations in handling the situation.
Western Sahara’s status as a state is unsure. The United Nations, it seems, has quietly acquiesced to Morocco’s occupation of the region, in violation of the non-binding 1975 ICJ advisory opinion and its own anti-colonization efforts. Conversely, even while the African Union has shied away from defending the region, Western Sahara remains an independent state within its ranks. The fact remains: while politicians continue to debate its status at the high levels of international governance, the Sahrawi people are denied their right to self-determination, and the promise of self-governance made to them in 1963.
Author Biography: Andrea Lorch is a moderator for the International Law and Policy Brief and a J.D. candidate at The George Washington University Law School. She has a Bachelor of Arts in International Relations and Religion, and a minor in Islamic World Studies from Lake Forest College in Lake Forest, Illinois, United States. She is interested in international human rights law and international humanitarian law.