Carlos Ruiz Miguel
Professor of Constitutional Law
University of Santiago de Compostela (Spain)
SPAIN’S
LEGAL OBLIGATIONS AS ADMINISTERING POWER OF WESTERN SAHARA
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Summary: Purpose. I.
Antecedents. The obligations of colonizators: I.1. The debate in
the foundations of the International Law; I.2. The obligations of the
colonial powers according to the General Act of Berlin; I.3. The
obligations of the colonial powers after the World War I.
II. The obligations imposed to the Administering powers under the UN
Charter. II.1. The obligations of all the UN members regarding the “non
autonomous territories”. II.2. The obligations imposed upon the
administering powers in the “non autonomous territories”. III. The
status of Spain as administering power. III.1. Before 19th November
1975. III.2. Between 19th November 1975 and 26th February 1976. III.3.
After 26th February 1976. IV. The Spain’s legal obligations as
administering power: doubts and responsibilities. V. Conclusions. VI.
Bibliography.
PURPOSE
The issue of the legal obligations of Spain as administering power is
certainly peculiar because since 1976, Spain does not has effective
power on the territory (although the maritime and aerial space present
a very relevant problem). In this paper, starting from an essay of
categorization of models of obligations of colonial powers
vis-à-vis its colonies, we want to show the evolution of these
models in the International law of the colonization until now. For this
purpose, we will try to clarify what is the legal status of Western
Sahara, discussing if it can be considered as the “administering power”
of the territory. Taking into account the obligations now established
for third countries and administering powers in the International Law
we want to study what obligations are imposed on Spain and its degree
of compliance.
I. ANTECEDENTS: THE OBLIGATIONS OF
COLONIZATORS
I.1. The debate in the
foundations of the International Law.
The foundations of modern International Law were set by Spanish
scholars when reflecting on the colonisation of America (Brown Scott).
It is not surprising to see arise in that very first moment the
question about the lawfulness and conditions of the colonisation. Three
different positions were taken into consideration.
According to the first, represented by the founder of the International
Law, the professor of the University of Salamanca Francisco de Vitoria
in 1539 a colonisation could be lawful provided that the colonizer
should seek the good of the colonized:
“Cum illa limitatione ut fieret
propter bone et utilitate eorum et non
tantum ad quaestum Hispaniorum” (Vitoria, p. 119).
According to the second, presented by the professor of the University
of Valladolid Bartolomé de
Carranza in 1540 a colonisation is
lawful, but only if it is provisory, so that in a short period of time
the colonized people may recover their independence:
“Should them (the barbarians) be
instructed by honest men so that they
don’t return to their barbary; and when this task was accomplished
after 16 or 18 years and the land be plain, because there is no risk
that they return to their primitive way of life, they should be left in
their original and own freedom because they don’t need more
trusteeship” (Carranza, p. 43).
But, opposed to them, the professor of the University of Alcalá
Melchor Cano, introduced a
third point of view in 1546. Starting from
the idea that “for the wisdom or policy sake no State has authority to
conquest another” (Cano, p. 105), Cano dissents from Vitoria and
Carranza stating that “a sovereign cannot clearly conquest by force the
barbarians for their welfare sake”. Hence, Cano rejects the lawfulness
of any colonization , even if under conditions:
“I reject that the wise men from
Spain should rule the ignorants of the
barbarian peoples. It is necessary to consider all the circumstances,
because maybe it’s not convenient such a perfect policy for those
stupid people” (Cano, p. 109).
I.2. The obligations of the
colonial powers according to the General
Act of Berlin.
I.2.A. As it is known, the European powers decided to establish
a
general International Law on the colonial process in the Berlin
Conference. It was then possible to choose between on of the three
possibilities embodied in the theories of the three quoted authors: a)
definitive occupation to promote the well being of the local population
with annexation of the territory; b) transitory occupation to promote
the well being of the population with further granting of independence;
and c) forbid of any occupation.
When choosing the content of this principle, they implemented the first
position but in a more radical way than formulated by Vitoria.
Two
points characterize this legal status:
a) the aim of promoting the “moral and material
well-being” of the
colonized people is recognized, but as a secondary aim subordinated to
the profit of the metropolis; and
b) there was no provision to grant the
independence to the colonized
territories.
The General Act of the African
Conference, signed at Berlin on February
26, 1885, was primarily intended to demonstrate the agreement of
the
Powers with regard to the general principles which should guide their
commercial and so called civilising action in the little-known or
inadequately organised regions of Africa. According to its Article VI:
“All the powers exercising sovereign
rights or
influence in the aforesaid territories bind themselves to watch over
the preservation of the native tribes, and to care for the improvement
of the conditions of their moral and
material well-being and to help in
suppressing slavery, and especially the Slave Trade. They shall,
without distinction of creed or nation, protect and favor all
religious, scientific, or charitable institutions and undertakings
created and organized for the above ends, or which aim at instructing
the natives and bringing home to them the blessings of civilization”.
Moreover, the General Act provided in its article XXXIV a system to
organize the occupation of the African continent:
“Any power which henceforth takes
possession of a
tract of land on the coasts of the African Continent outside of its
present possessions, or which, being hitherto without such possessions,
shall acquire them and assume a protectorate . . . shall accompany
either act with a notification thereof, addressed to the other
Signatory Powers of the present Act, in order to enable them to protest
against the same if there exists any grounds for their doing so”.
I.2.B. This colonial Law was
applied to the territory of “Rio de Oro”
(in the Western Sahara) which was set under the Spanish rule some
months before the General Act.
In November 28, 1884, the representatives of the independent Sahrawi
tribe in Rio de Oro signed a Treaty of protectorate with the
representative of the Kingdom of Spain where it was stipulated that:
“we have transferred to them the
territory called
Uadibe or Cape Blanc, in the coast, so that it may lie by the sole
protection of the government of HM the King of Spain, Alphonse XII”
(French version in C.I.J., Mémoires, t. II, p. 89: Spanish
original version in Diego Aguirre, Historia del Sahara Español,
p. 163).
In December 26 1884, a royal order to the Representatives of the King
of Spain in the foreign countries confirms that Spain accepts to
establish a “protectorate” on the region of Rio de Oro between cape
Blanco (20º 51’ N-10º 56’ W) and cape Bojador (26º 8’
N-8º 17’ W), that is, on the centre and south of the Western
Sahara (French version of this text in C.I.J., Mémoires, t. II,
p. 96; Spanish original version, Diego Aguirre, Historia del Sahara
Español, p. 164). This decree was enacted before
the entry
into force of the General Act. The Kingdom of Morocco did not express
any reservation or protest before the Spanish declaration of
protectorate (C.I.J., Mémoires,
t. I, p. 288).
I.3. The obligations of the
colonial powers after the World War I.
The World War I brought some changes on the Colonial Law. The main
consequence was that the dominions of the defeated powers were
submitted. Some of those dominions (the German ones) were in Africa.
And then, the colonial Law related to Africa was split in two regimes.
I.3.A. As far as the colonies
of the non defeated powers were
concerned, the International Law applied to their colonies still was
the General Act of Berlin, with the new modifications introduced in
1919. The Convention Revising the
General Act of Berlin, February 26,
1885, and the General Act and Declaration of Brussels, July 2, 1890 was
signed at Saint-Germain-en-Laye, September
10, 1919. The 1919
Convention does not introduce any substantive changes on the legal
regime established in Berlin in 1884. It says that under the control of
the new authorities “the evolution of the native populations continues
to make progress”. According to the new draft of the article 11:
“The Signatory Powers exercising
sovereign rights or authority in
African territories will continue to watch over the preservation of the
native populations and to supervise the improvement of the conditions
of their moral and material well-being.
They will, in particular,
endeavour to secure the complete suppression of slavery in all its
forms and of the slave trade by land and sea”.
I.3.B. But, as far as the
territories depending from the defeated
powers were concerned, a new Law was set into force, namely the
Covenant of the League of Nations
June 28, 1919. Its article 22
contained the new law on colonization for those territories.
The first paragraph of the Article introduce the general principles
which were the same established in the General Act of Berlin 1884, i.e.,
a) the obligation to promote
the “well-being” of the
colonized people;
and
b) the metropolis have no obligation to grant independence
to those
territories.
Hence no differences are in this point for the colonies ruled under the
General Act of Berlin 1884 and the Covenant of the League of Nations
1919. Certainly, the Covenant spoke, for the first time, about the fact
that the ancient colonies of the States who lost the war were
territories “not yet able to stand by themselves”. However, no
obligation was imposed to grant independence even if it comes a moment
where they could be able to stand by themselves:
“To those
colonies and territories which as a
consequence of the late war have ceased to be under the sovereignty of
the States which formerly governed them and which are inhabited by
peoples not yet able to stand by themselves under the strenuous
conditions of the modern world, there should be applied the principle
that the well-being and development of such peoples form a sacred trust
of civilisation and that securities for the performance of this trust
should be embodied in this Covenant”.
But some important differences were introduced in the next
paragraphs.
Those differences were that:
a) Those colonies were not under the sovereignty of a State but under
the tutelage of the League of Nations:
“The best method of giving practical
effect to this principle is that
the tutelage of such peoples should be entrusted to advanced nations
who by reason of their resources, their experience or their
geographical position can best undertake this responsibility, and who
are willing to accept it, and that this tutelage should be exercised by
them as Mandatories on behalf of the League”;
b) The character of the mandate differed “according to the stage
of the
development of the people, the geographical situation of the territory,
its economic conditions and other similar circumstances”. The degree of
authority, control, or administration to be exercised by the Mandatory
should, “if not previously agreed upon by the Members of the League, be
explicitly defined in each case by the Council”.
c) and finally, that some obligations were imposed on the Mandatories:
“In every case of mandate, the
Mandatory (should) render to the Council
of the League of Nations an annual report in reference to the territory
committed to its charge.(…) A permanent Commission (should) be
constituted to receive and examine the annual reports of the
Mandatories and to advise the Council on all matters relating to the
observance of the mandates”.
II. THE CHARACTER OF THE OBLIGATIONS
IMPOSED UPON THE ADMINISTERING POWERS UNDER THE UN CHARTER
II.1. The obligations of all
the UN members regarding the non
autonomous territories.
II.1.A. The new Law of the UN be distinguished three types of
colonial
territories: a) “Mandates” (inherited from the League of Nations); b)
“trust territories” (trusteeships newly established by the UN); and c)
“non autonomous territories” (the colonies established before the UN
Charter). The Western Sahara, a colony established before the
approbation of the UN Charter was qualified then as “non autonomous
territory”. Two stages can be distinguished on the consideration of
this issue. In the first one, there is no special recognition of the
obligations of the UN members regarding of the non autonomous
territories, while in the second, it was developed an obligation erga
omnes to respect their right of self-determination.
II.1.B. In the first stage,
just after the approval of he UN Charter,
no specific obligations of the member States were established regarding
the non autonomous territories. Certainly, the Charter was a step
beyond the former treaties on Colonial Law. But initially this change
affected only the United Nations as such and not their member States.
No reference is made in the article 2 of the UN Charter to an
obligation for the Member States regarding the colonies if not involved
in the colonization process. But the article 1.2 imposes on the United
Nations as a whole the obligation “to develop friendly relations among
nations based on respect for the
principle of equal rights and
self-determination of peoples”.
II.1.C. However, in a further
stage, some new obligations arose for the
UN member States. The obligations imposed on the third States to
implement the respect of this right are of two kinds: political and
economical.
II.1.C.a. Politically, the
third States are obliged to observe, respect
and promote the right of self-determination. The development of the
principle of self-determination by the resolutions of the General
Assembly and the case-law of the International Court of Justice has
lead to impose obligations not only to the UN as such, but also to all
the Member States even if not involved in a colonization. As a result,
it has been declared that the “self-determination” is not only a
general principle of the Law
of the UN, but also a right
of the peoples
that from now on have a separate, own
international status. This
transformation of the self determination from being a principle to be a
principle and a right has an important consequence, i.e., that,
as a
right, has a character erga omnes that necessarily implies a
correspondent obligation for all the UN members to respect it.
The “Declaration on the granting of independence to colonial countries
and peoples” (GA Resolution 1514 (XV)) states that “All States shall
observe faithfully and strictly the provisions of the … present
resolution”.
The “Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation Among States in Accordance with the Charter
of the United Nations” (GA Resolution 2625 (XXV)):
“Every State has the duty to
promote, through joint
and separate action, realization of the principle of equal rights and
self-determination of peoples, in accordance with the provisions of the
Charter, and to render assistance to the United Nations in carrying out
the responsibilities entrusted to it by the Charter regarding the
implementation of the principle”.
“the territory of a colony (…) has,,
under the
Charter, a status separate and distinct from the territory from the
State administering it; and such separate
and distinct status shall
exist until the people of the colony (…) have exercised their right of
self-determination in accordance with the Charter”.
This legal evolution has been confirmed by the ICJ that has stated that:
“In the Court's view, Portugal's
assertion that the
right of peoples to self-determination, as it evolved from the Charter
and from United Nations practice, has an erga omnes character, is
irreproachable” (East Timor (Portugal v. Australia), para.
29).
II.1.C.b. Economically, the
fight against colonialism developed a new
obligation previously ignored. The “Programme of Action for the full
implementation of the Declaration on the granting of independence to
colonial countries and peoples” (GA Resolution 2621 (XXV) 1970)
established the obligation to avoid any economic practice in the non
autonomous territory on behalf of the colonial power as it is a major
obstacle to achieve the decolonization:
“Member States shall wage a vigorous
and sustained
campaign against activities and practices of foreign economic,
financial and other interests operating in colonial Territories and on
behalf of colonial Powers and their allies, as these constitute a major
obstacle to the achievement of the goals embodied in resolution 1514
(XV). Member States shall consider the adoption of necessary steps to
have their nationals and companies under their jurisdiction discontinue
such activities and practices; these steps should also aim at
preventing the systematic influx of foreign immigrants into colonial
Territories, which disrupts the integrity and social, political and
cultural unity of the peoples under colonial domination”.
This obligation, imposed to all UN State members as
an obligation regarding all the non autonomous territories was
explicitly referred also to the
Western Sahara in GA Resolution 3292
(XXIV) (1974):
“(the General Assembly) Reiterates
its invitation to
all States to observe the resolutions of the General Assembly regarding
the activities of foreign economic and financial interests in the
Territory and to abstain to contribute by their investments or
immigration policy to the maintenance of a colonial situation in the
Territory”
II.1.D. We may then conclude
that the third States have not only
an
obligation to respect politically the separated, different and specific
status of then “non autonomous territories”, but also to prevent any
economic action blurring it or supporting the continuation of the
colonial rule. This obligation exists also regarding those third States
that claim to have some legal ties with the “non autonomous territory”
before it was colonized by the administering power. This is
self-evident if we consider that even the Administering power, which
was entitled with a legitimate and valid title to occupy the territory
has its title affected by the principle of self-determination.
II.2. The obligations of the
administering powers.
II.2.A. As it happened with the obligations of all the member
States,
the regulation of the obligations of the administering powers regarding
its colonies has know an evolution on several stages. On the first
stage a progress was made in comparison to the earlier International
Law because the obligations were not only social-economical (promotion
of well-being), but also political (development of “self-government”).
In the second stage, both obligations, the social-economical and the
political, were deeply developed.
If we could express it, in theoretical terms, we could say that on the
first stage, the UN Charter set a frame which was between the classical
Francisco de Vitoria model (promotion of the well-being of the colony
as condition to the annexation) and the Bartolomé de Carranza
model (promotion of the well-being of the colony and obligation to
grant further independence).. But in the second, it seems that it was
the Melchor Cano model the one who was taken into account (granting of
the independence without further delay).
II.2.B. In the first stage, the
frame of the colonial Law regarding the
colonial powers on the non autonomous territories was mainly contained
in the article 73 of the Charter. As it has been previously said, this
system means a step forward in comparison with the legal regime of the
colonies established in the Covenant of the League of Nations, because
together with the already existent obligations within the social or
economical sphere, it added obligations within the political one.
These two obligations are expressed this way in the article 73:
a) The colonial authority must
promote the social, economical and
educational “well-being” of
the colonized people:
“Members of the United Nations which
have or assume
responsibilities for the administration of territories whose peoples
have not yet attained a full measure of self-government recognize the
principle that the interests of the inhabitants of these territories
are paramount, and accept as a sacred trust the obligation to promote
to the utmost, within the system of international peace and security
established by the present Charter, the well-being of the inhabitants
of these territories , and, to this end:
a. to ensure, with due respect for
the culture of the peoples
concerned, their (…), economic, social, and educational advancement,
their just treatment, and their protection against abuses;
(…)
d. to promote constructive measures
of development, to encourage
research, and to co-operate with one another and, when and where
appropriate, with specialized international bodies with a view to the
practical achievement of the social, economic, and scientific purposes
set forth in this Article;
e. to transmit regularly to the
Secretary-General for information
purposes, subject to such limitation as security and constitutional
considerations may require, statistical and other information of a
technical nature relating to economic, social, and educational
conditions in the territories for which they are respectively
responsible other than those territories to which Chapters XII and XIII
apply.”
and
b) that colonial authority must
develop the “self-government” of the
territory (see also art. 76.b for the “trust territories”):
“Members of the United Nations which
have or assume responsibilities
for the administration of territories whose peoples have not yet
attained a full measure of self-government (…) accept as a sacred trust
the obligation to promote to the utmost, within the system of
international peace and security established by the present Charter,
the well-being of the inhabitants of these territories, and, to this
end:
a. to ensure, with due respect for
the culture of the peoples
concerned, their political, (…) advancement, their just
treatment, and their protection against abuses;
b. to develop self-government, to
take due account of the political
aspirations of the peoples, and to assist them in the progressive
development of their free political institutions, according to the
particular circumstances of each territory and its peoples and their
varying stages of advancement”.
II.2.C. In a second stage,
started in 1960, these two obligations were
deeply developed: first, the political; and then the economical. The
political obligations of the administering power knew a sudden and
transcendental shift when the “Declaration on the granting of
independence to colonial countries and peoples” (GA Resolution 1514
(XV, 1960)) was passed. On the opposite, the economical obligations had
a slower reshape.
II.2.C.a. As far as the
political obligations are concerned, the
“Declaration on the granting of independence to colonial countries and
peoples” (GA Resolution 1514 (XV, 1960) is extremely severe. After
considering that the self-determination is not only a “principle” of
the UN, but also a “right” of the peoples, it imposes on the
administering powers the obligation to start immediately the process of
independence without any conditions. However, this process must be made
in accordance with the freely expressed will of the peoples:
“Immediate steps shall be taken, in Trust and
Non-Self-Governing Territories or all other territories which have not
yet attained independence, to
transfer all powers to the peoples of
those territories, without any
conditions or reservations, in
accordance with their freely expressed will and desire, without any
distinction as to race, creed or colour, in order to enable them to
enjoy complete independence and freedom”.
This new obligation was more extensively regulated in the GA
Resolutions 1541 (XV) 2625 (XXV). These resolutions consider the
possibility that the colonized people may choose freely between several
options: full independence, free association with or integration in any
other State.
II.2.C.d. The economic
obligations were developed since the “permanent
sovereignty over their natural wealth and resources”, first declared in
the GA Resolution 1314 (XIII), was applied also to the non autonomous
territories. The consequence was that the administering power was
specially subject to respect the economic rights of the non-self
governing territories to enjoy its resources. The GA Resolution 44/84
(1989) said that the General Assembly:
“Reiterates that any administering
Power that
deprives the colonial peoples of Non-Self-Governing Territories of the
exercise of their legitimate rights over their natural resources, or
subordinates the rights and interests of those peoples to foreign
economic and financial interests, violates the solemn obligations it
has assumed under the Charter of the United Nations;”
But the economic obligations of the administering Powers were further
developed in several GA Resolutions.
Firstly, it was introduced the obligation to take effective measures to
safeguard and guarantee the inalienable rights of the peoples of the
Non-Self-Governing Territories to their natural resources (since GA
Resolutions 48/46 -1994-).
“Urges the administering Powers
concerned to take effective measures to
safeguard and guarantee the inalienable rights of the peoples of the
Non-Self-Governing Territories to their natural resources, and to
establish and maintain control over the future development of those
resources, and requests the administering Powers to take all necessary
steps to protect the property rights of the peoples of those
Territories;”
Then, it was established the obligation that the economic activities
(GA Resolution 62/120) and specially extended to the marine activities
(GA Resolution 62/113) of the administering Power should not “adversely
affect the interests of the peoples”),:
“Calls upon the administering Powers
to ensure that
economic and other activities in the Non-Self-Governing Territories
under their administration do not adversely affect the interests of the
peoples but instead promote development, and to assist them in the
exercise of their right to self-determination”
“Calls upon the administering Powers
to ensure that
the exploitation of the marine and other natural resources in the
Non-Self-Governing Territories under their administration is not in
violation of the relevant resolutions of the United Nations, and does
not adversely affect the interests of the peoples of those Territories;
III. THE STATUS OF SPAIN AS
ADMINISTERING POWER
Three different stages can be distinguished in order to know what is
the status of Spain in the Western Sahara. Whereas in the first
stage (until November 19, 1975) there is no doubt on its quality of
“administering power”, since that moment doubts have been cast on its
legal status because of the developments of the case.
III.1. Before 19th November
1975.
In 1961, just a few years after its admission to the United Nations,
Spain accepted to consider the Western Sahara officially as a non
self-governing territory i.e. as a colony. In 1963 Spain accepted the
inclusion of the issue in the agenda of the Fourth Commission
(Piniés, p. 91 ss.). Thereby it became involved in the
decolonisation process in accordance with the United Nations Charter.
The United Nations subsequently recognized Spain as the administering
power of the Western Sahara. The first UN General Assembly Resolution
that referred to Spain as the "administering Power" (puissance
administrante) of the Western Sahara was Resolution 2072 of 17
December
1965. In paragraph 2 of this resolution the General Assembly urgently
requested "the Government of Spain, as the administering Power, to take
immediately all necessary measures for the liberation of the
Territories of Ifni and Spanish Sahara from colonial domination."
This quality of Spain as the administering Power of the Western Sahara
was reiterated by several subsequent General Assembly Resolutions:
Resolutions 2229 (20 December 1966), 2354 (19 December 1967), 2428 (27
December 1968), 2591 (16 December 1969), 2711 (14 December 1970), 2983
(14 December 1972) and 3162 (14 December 1973).
III.2. Between 19th November
1975 and 26th February 1976.
III.2.A. On 14 November 1975,
six days before Franco’s death, Spain
signed an Agreement with Morocco and Mauritania. This Agreement
consisted of a "political declaration" transmitted to the United
Nations and some secret annexes. The "Declaration of Principles between
Spain, Morocco and Mauritania on the Western Sahara" Agreement (United
Nations Treaty Series, 1975, p. 258) became commonly known as
the
Madrid. In this Agreement Spain agreed to constitute a tripartite
(Spain-Morocco-Mauritania) interim administration to which all the
responsibilities and powers of Spain as “administering power” were
transferred. In the first paragraph of the Agreement, Spain confirmed
"its resolve to decolonize the Territory of Western Sahara by
terminating the responsibilities and powers which it possesses over
that Territory as administering power." According to the second
paragraph of the Agreement, Spain committed to "proceed forthwith to
institute a temporary administration the Territory". Morocco and
Mauritania were to participate, in collaboration with the Djemaa
(assembly of Saharawi notables/sheikhs). All responsibilities and
powers arising from Spain's status as administering power over the
Western Sahara were transferred to these two states. It was also agreed
that two Deputy Governors nominated by Morocco and Mauritania should be
appointed "to assist the Governor General of the Territory in the
performance of his function." Finally, paragraph 2 of the Agreement
announced that the Spanish presence in Western Sahara was going to be
terminated by 28 February 1976 "at the latest". The Madrid Agreement
entered into force on 19 November 1975, once Spain passed the law
stipulated in paragraph 6.
III.2.B. The Madrid Agreement
provoked a sharp debate in the General
Assembly in November 1975. As a result of this debate two resolutions
were passed, both on 10 December 1975.
UN General Assembly Resolutions
3458(A) qualified Spain five times as
“administering power”, twice in the Preamble and three times in the
main text. This carried special relevance as this qualification was
made after the Madrid Agreement was signed. In other words, in its
Resolution 3458(A) the UN General Assembly ignores the Madrid Agreement
and considers it as not written insofar it does not take in
consideration the transfer of the status of administering power to the
tripartite entity (Spain-Morocco-Mauritania).
UN General Assembly Resolution 3458(B)
took note of the tripartite
Agreement but did not endorse
it insofar it requested the interim
administration to act differently as proposed in the Madrid Agreement.
Resolution 3458(B) requested the interim administration not simply to
consult the Djemaa as the Madrid Agreement stated, but to consult “all
the Saharan population originating in the territory” and "to take all
steps to ensure that all the Saharan population in the territory will
be able to exercise their inalienable right to self-determination
through free consultations organized with the assistance of a
representative of the United Nations appointed by the
Secretary-General”(paragraph 4).
The consideration of these two resolutions leads to the conclusion that
the UN General Assembly did not endorse the Madrid Agreement, and that
Spain was still considered to be the administering power. UN General
Assembly Resolution 3458(A) simply ignored the Madrid Agreement and
Resolution 3458(B) although quoting it (only “took note” of it) ignored
it because it requested a referendum that the Madrid Agreement did not
contain. According to the UN Spain was still to be considered the
administering power of the Western Sahara.
But there is another argument to assess that itself, one of the
signatories of the Agreement, Spain, did not consider it valid.
II.2.C. On 26 February 1976,
the Permanent Representative of Spain to
the United Nations sent a letter to the Secretary General [1] of
major relevance. The letter stated that the Spanish Government, with
immediate effect and definitely terminated its presence in the Western
Sahara. In this document Spain deemed it necessary to put two
statements of major relevance on record:
“(a) Spain considers itself
henceforth exempt from any responsibility
of an international nature in connection with the administration of the
said Territory, in view of the cessation of its participation in the
temporary administration established for the Territory;
(b) the decolonization of the Western
Sahara will be reached when the
opinion of the Saharawi population was validly expressed”.
The Spanish note was not protested
neither by Morocco nor Mauritania.
This letter is an international act extraordinary relevant to consider
this issue, because it is the evidence that Spain still was in that
period the “administering power” of the Western Sahara. By this note,
Spain, did not only tried to get rid unilaterally of its
responsibilities and status of administering power, but also
interpreted unilaterally or reconducted it to the international
legality to establish that no decolonization was made of the territory
through the Madrid Agreement. And if the statement (b) was made
unilaterally by Spain, and not
by the tripartite administration, and
was not protested by Morocco and Mauritania it is because Spain
explicitly, and Morocco and Mauritania implicitly, considered that the
Western Sahara was not decolonized.
III.3. After 26th February
1976.
III.3.A. According to the
previous ideas it is undoubtful that the
Western Sahara was not decolonized through the Madrid Agreement. And
this is confirmed with the fact that the issue of Western Sahara is
still in the Agenda of the 4th Commission of the General Assembly. The
question, then is: who is the administering power after that date?
III.3.B. Morocco has still
invoked the Madrid Agreement as a title for
its presence in the Western Sahara as “administering power” (as far as
I know, for the last time that Morocco formally invoked the Madrid
Agreement was on 2 February 2006 [2]).
However a careful analysis of the
Agreement reveals that this Moroccan claim is highly questionable for
different reasons.
Firstly, Spain's responsibilities and powers as administering power
were not transferred to Morocco in that Agreement but to a tripartite
entity “in which Morocco and Mauritania will participate” alongside
Spain. Consequently, it is incorrect to state that the Madrid Agreement
gave Morocco any element of a status as administering power. That
quality was not given by the Madrid Agreement to Morocco but to a
tripartite entity composed by Spain, Morocco and Mauritania.
Secondly, the tripartite administration not only assumed the powers but
also the responsibilities that corresponded with those of Spain as
administering power. The most important of these responsibilities,
according to international law, was the task of decolonising the
territory through a self-determination referendum as demanded by UN
General Assembly Resolutions. While this task was not included in the
Madrid Agreement itself, General Assembly Resolution 3458(B) did
mention it clearly again when referring to the Agreement. Accordingly,
the Madrid Agreement failed to deliver one of the main responsibilities
to be discharged of, that is the holding of a self-determination
referendum. One could even argue that, since the Madrid Agreement
neglects this major responsibility of the administering power, it
should be regarded invalid.
Thirdly, it is also appropriate to recollect that the tripartite
administration was meant to be temporary (interim). Hence, by
definition it was to finish in the very moment Spain would abandon the
territory, that is, before 28 February 1976. Spain even abandoned the
territory two days before, on 26 February 1976. This means that after
26 February 1976 the tripartite administration came to an end since one
of the parties was absent. The Madrid Agreement did not preview how the
two remaining actors could assume the rights of the tripartite
administration. The delegation of powers that Spain conceded to the
tripartite administration did not consider sub-delegations.
Consequently, after 26 February 1976 the tripartite administration
ceased to exist and since administration was not (to be) delegated,
Morocco and Mauritania were no longer co-administrators of the
territory. Since 26 February 1976 Morocco is neither administering
power nor co-administrator.
III.3.C. The Treaty on borders
between Morocco and Mauritania from
April 14th 1976 (United Nations
Treaty Series, 1977, p. 118-119)
proceed to the partition and annexation of the Western Sahara. The
annexation partition of the Western Sahara is stipulated in Article 1
while the annexation is established in the article 2 (where both
parties speak about “sovereignty”). Both parties intended to do this
partition and annexation:
“in conformity with the Declaration
of Principles,
signed in Madrid on November 14th 1975 which transferred to the interim
administration participated by Morocco and Mauritania with the
collaboration of the Djemaa, the responsibilities and powers which
Spain had on the Sahara” (Preamble of the Treaty).
However, the basis for this partition and annexation is void. The main
reason is that it is made on April 14th 1976, several months after
ended (on February 26th 1976) the interim administration. This means
that the Treaty was made lacking from any legal basis to justify the
presence of Morocco and Mauritania in the territory after February 26th
1976.
III.3.D. The UN had clearly
stated that Morocco is neither sovereign
(as pretended in the Treaty from April 14th 1976) nor “administering
power” neither in part, nor in the whole territory of the Western
Sahara. This analysis was confirmed by the law of the United Nations.
When confronted with the question of the Western Sahara after Spain had
abandoned the territory, the UN General Assembly clearly qualified the
presence of Morocco in the Western Sahara as “continued occupation”
[UNGA Res. 34/37 (para. 5 and 6) of 21 November 1979 and 35/19 (paras.
3 and 9) of 1 November 1980.].
Furthermore, the letter dated 29 January 2002 from the UN
under-Secretary-General and Legal Counsel Hans Corell to the President
of the Security Council, confirmed these conclusions as follows:
“Morocco however, is not listed as
the administering Power of the
territory in the United Nations list of Non Self Governing Territories,
and has, therefore, not transmitted information on the territory in
accordance with Articles 73 (e) of the United Nations Charter”
(UN Doc.
S/2002/161, n. 6, section 7.)
III.3.E. After February 26th
1976 there is no UN resolution stating
that Spain is “administering power” of the Western Sahara. However,
this does not mean a lack of acts of the UN recognizing this status. In
every report of the UN Secretary-General about the “Information from
Non-Self-Governing Territories transmitted under Article 73(e) of the
Charter of the United Nations” Spain was consistently referred to as
the administering power of the Western Sahara (see ultimately, A 61/70
[2006] and A/62/67 [2007]).
Moreover, the UN under-Secretary-General and Legal Counsel Hans Corell,
also confirmed in his opinion the quality of Spain as “administering
power” of the territory:
“The Madrid Agreement did not
transfer sovereignty over the territory,
nor did it confer upon any of the signatories the status of an
administering Power, a status which Spain alone could not have
unilaterally transferred” (UN Doc. S/2002/161, section 6).
III.3.F. However, Spain still has not completely abandoned the
administration of the territory. Spain still holds some administering
competences on the Western Sahara on two fields: airspace and search
and rescue regions.
As far as the airspace is concerned, the airspace of the Western Sahara
is included in the Spanish airspace, and more precisely in the
“Canary
Islands Flight Information Region UA”[3] . This means that Morocco
precise
that Spain should grant it permission for flights in this territory.
This explains why when the Moroccan air force wanted to do some
military exercises in the Western Sahara (airspace over the coast
between El Aaiun and Dakhla-Villa Cisneros), asked permission to the
Spanish one. The press informed that between September 6th and December
31st 2004, the Spanish Air Force established some restrictions to the
air traffic in this region in order to facilitate those military
exercises.[4]
Regarding the maritime space,
in the frame of the SOLAS convention
((International Convention for the Safety of Life at Sea), the
International Convention on Maritime
Search and Rescue (signed in
Hamburg in April 27th 1979 and entered into force on June 22nd 1985)
divides the international waters into various “search and rescue
regions” (SAR regions). Certainly, the Annex of this last treaty,
establishes that
“the delimitation of search and
rescue regions is not related to and
shall not prejudice the delimitation of any boundary between States”
(Annex, paragraph 2.1.7).
According to the ocean atlas published by the International
Maritime Organisation (IMO) one of the Spanish “SAR regions”, that of
Canary Islands, comprehends all the coast of the Western Sahara [5]. This
certainly does not include the Western Sahara inside the Spanish
boundary, but it is an indice that the waters of the Western Sahara,
though not being under Spanish sovereignity are not submitted to the
Moroccan administration.
III.3.G. Lately, the government
in Spain, since Rodriguez Zapatero was
appointed as prime minister, radically changed the traditional position
of the state, insofar it considers Morocco as the administering power
of the Western Sahara. The Zapatero government is the first Spanish
government after Franco’s death that qualified Morocco as Western
Sahara's ‘administering power’. A number of high official
representatives of the Spanish government have repeatedly insisted that
Morocco is the territory’s administering power. In June 2005 Spanish
foreign affairs minister Miguel Ángel Moratinos uttered as many
as four times that the Madrid Agreement “gave Morocco its quality as
administering power recognised by United Nations”. Statements to this
extent were made on 22 June 2005 in the Senate, on 27 June 2005 in the
Tele 5 channel program ‘La Mirada Crítica’, on 29 June 2005 in
the Spanish Congress and on 7 August 2005 in the city of Asilah,
Morocco. In turn, Agustín Santos, Executive Assessor for
Parliamentary Matters at the Spanish Ministry of Foreign Affairs
alluded to the “Moroccan authorities, as the Western Sahara
administering power” (Reference of these acts in Ruiz Miguel, p. 310).
However, as far as I know, this did not mean that the airspace of the
Western Sahara or the search and rescue competence in the waters of
Western Sahara have been transferred to Morocco.
IV. THE SPAIN’S LEGAL OBLIGATIONS AS
ADMINISTERING POWER: DOUBTS AND RESPONSIBILITIES
IV.1. The situation of the
Western Sahara, then, is very close to the
case of East Timor, although not exactly similar. Like in that case,
the “administering power” (Spain, Portugal) lost its effective dominion
at least on the territorial space of the country. When argued the case
of East-Timor before the International Court of Justice [East Timor
(Portugal v. Australia)], nobody contended that Portugal still
was the
“administering power” of the colony, although, like in the Western
Sahara case, no General Assembly resolution mentioned it after 1975.
But, between both cases there is a difference: the occupying power does
not occupy all the territory; and people colonized founded its own
State (the SADR) which controls a part of the territory and is
recognized by an important number of States. This special context of
the Western Sahara case raises the question about what are the
obligations of Spain as administering power and the degree of
compliance with them. As argued before, on the administering powers are
imposed two main kinds of obligations: ones of political character (to
immediately steps towards the independence of the colony) and others of
social, economical and cultural character.
IV.2. Spain is firstly subject
to the obligations imposed to all member
States of the United Nations, among them: to observe, respect and
promote the right of self-determination, and to keep the separate and
distinct character of the Western Sahara to avoid any obstacle to the
future self-determination. But then, it also has special obligations as
administering power. According to the General Assembly Resolution 1514
(XV) Spain, has the obligation to take:
“Immediate
steps (…) to transfer all powers to the peoples of those
territories, without any conditions
or reservations, in accordance with
their freely expressed will and desire”.
In the Western Sahara question, the problem is that part of the
territory occupied and the occupying power rejects to hold a free
referendum to know if the people of Western Sahara wants the
independence, although its right to the independence has not only being
stated by the General Assembly, but also by the International Court of
Justice that did not see any obstacle to apply the Resolution 1514 (XV)
to the Western Sahara.
The question is what are the obligation of Spain in this case? As it
was said in the letter dated 26th February 1976:
“(b) the decolonization of the Western Sahara will be reached when the
opinion of the Saharawi population was validly expressed”.
But, what could be done if the opinion of the Sahrawi population cannot
be validly expressed? In my opinion, the right of self-determination of
a people cannot be obstacled by the fact that the administering power
cannot hold a referendum to know the freely expressed will of the whole
colony.
It could be contended if, in such a case, when the part of the people
not suffering occupation express its will to hold the referendum, Spain
has an obligation (and not only a right) to recognize, even if
provisory, the State proclaimed by the people who has a right to
independence and wants to express that will. But, what is not contended
is that, in such a case, the UN have a responsibility towards the
people of Western Sahara. And certainly, the resolutions of the GA
reaffirm it (see, lately GA Resolutions 58/109 [2003], 59/ 131 [2004],
60/114 [2005], 61/125 ][2006], 62/116 [2007]):
“(the General Assembly) Reaffirming responsibility of the United
Nations towards the people of the Western Sahara”
IV.3. As it occurs with the
political obligations, Spain is subject to
the economic, social and educational obligations that all the members
of the international community. Among these, it is important to quote:
“Member States shall wage a vigorous
and sustained
campaign against activities and practices of foreign economic,
financial and other interests operating in colonial Territories and on
behalf of colonial Powers and their allies, as these constitute a major
obstacle to the achievement of the goals embodied in resolution 1514
(XV). Member States shall consider the adoption of necessary steps to
have their nationals and companies under their jurisdiction discontinue
such activities and practices; these steps should also aim at
preventing the systematic influx of foreign immigrants into colonial
Territories, which disrupts the integrity and social, political and
cultural unity of the peoples under colonial domination”. (Resolution
2621 (XXV) 1970).
But, Spain as administering power is also subject to
these obligations:
“Reiterates that any administering
Power that
deprives the colonial peoples of Non-Self-Governing Territories of the
exercise of their legitimate rights over their natural resources, or
subordinates the rights and interests of those peoples to foreign
economic and financial interests, violates the solemn obligations it
has assumed under the Charter of the United Nations;” (GA
Resolution
44/84 (1989))
“Urges the administering Powers
concerned to take effective measures to
safeguard and guarantee the inalienable rights of the peoples of the
Non-Self-Governing Territories to their natural resources, and to
establish and maintain control over the future development of those
resources, and requests the administering Powers to take all necessary
steps to protect the property rights of the peoples of those
Territories;” (GA Resolution 48/46 (1994)).
“Calls upon the administering Powers
to ensure that
economic and other activities in the Non-Self-Governing Territories
under their administration do not adversely affect the interests of the
peoples but instead promote development, and to assist them in the
exercise of their right to self-determination” (GA Resolution
62/113)
(2007))
“Calls upon the administering Powers
to ensure that
the exploitation of the marine and other natural resources in the
Non-Self-Governing Territories under their administration is not in
violation of the relevant resolutions of the United Nations, and does
not adversely affect the interests of the peoples of those
Territories;” (GA Resolution 62/113) (2007)).
If the fulfilment of the political obligations of the administering
power was difficult in the context of the Western Sahara, it seems that
it is not so in respect to the economical obligations. There is now an
ongoing process of spoliation of the natural resources of the Western
Sahara (phosphate and fisheries). We find also the establishment of
economic initiatives by the occupying power in order to obtain benefits
from the sand, the agriculture and the tourism. In all these
activities, Spain is involved.
The maritime resources are being profited by Morocco
with the complicity of Spain through the Fisheries Agreement signed by
the European Union and Morocco [Council Regulation (EC) No 764/2006 of
22 May 2006 on the conclusion of the Fisheries Partnership Agreement
between the European Community and the Kingdom of Morocco; OJ L141 of
29/05/2006, p.1]. Spain voted in favour of such an agreement and
actively lobbied in favour of it. As it has been clear now the
Agreement: a) included the waters of the Western Sahara; b) those
waters did not receive a separate and distinctive treatment from those
of Morocco; c) the economic compensations of the EU did not benefit the
local Saharawi population; and d) a huge majority of the people
involved in the Agreement in the Western Sahara (mainly 95%) were not
Saharawi citizens included as such in the census of the United Nations
to vote in the referendum of self-determination. It is then extremely
clear that this agreement is a major obstacle to the self-determination
of the Western Sahara (Milano).
As far as the phosphates are
concerned, all the
benefits of its exploitation revenue to a firm owned by Morocco. Even
if in this sector there is bigger percentage of Saharawi workers than
in the Fisheries agreement, but there is not any provision which
reserves only for the Sahrawis these jobs, despite the high
unemployment rate of the native population. Hence the import of
phosphates contributes to obstacle the self-determination. There are
several foreign firms importing Sahrawi phosphates, and among them a
Spanish firm (FMC Foret) which did not find any constriction to do it
from the Spanish government.
The sand is also a product
spoiled from the
territory and mainly imported by Spain. And here also, it is not clear
that the benefits revenue on the local population, taking into account
the absence of information because Morocco do not comply with the
obligation to inform established in the article 73.e of the UN Charter.
As far as the agriculture is
concerned, the problem is like in the
fisheries and phosphate sectors that the labels of the products do not
specify that the product is originated in a territory separated and
distinct from Morocco. Finally, the occupying power is trying to build
a touristic infrastructure, but also here there is no evidence at all
that the benefits revenue in the local population because there is no
exigency to give the jobs to the local native population officially
considered by the United Nations as members of the Saharawi people.
There are also Spanish firms involved in these projects (further
information: Western Sahara Resources Watch, www.wsrw.org).
IV.4. The problems arisen in
the process of decolonization of Western
Sahara present distinctive features. Although it is clear the
non-compliance of Spain of its legal obligations as “administering
power” of economic character, there is a difficulty to appreciate what
are the political legal obligations of Spain. This is why it should be
necessary to ask the International Court of Justice for an advisory
opinion. I think that the General Assembly should ask the International
Court of Justice some questions which can be formulated in this way:
1. Is still Spain the
administering power of the
Western Sahara according to the United Nations resolutions?
2. If it is still so, does it has the responsibility
to hold a referendum of self-determination?
3. If Spain cannot comply with such an obligation,
shall the United Nations have the responsibilities that corresponded to
Spain as administering power of the Western Sahara to hold a referendum
of self-determination?
V. CONCLUSIONS
Since the foundations of the International Law three models have been
formulated to determine the position of a colonial power regarding its
colony: a) obligation to promote its well-being compatible with its
annexation; b) obligation to promote its well-being and obligation to
grant it the independence; and c) obligation to grant it the
independence without further delay.
The history of the colonial Law shows how the different models have
been implemented. The first model was adopted in the colonial Law
derived from the General Act of Berlin 1885. This was also the model of
the colonial Law in the Covenant of the League of Nations, although
here for the first time reference is made to the possibility that a
people could be able to stand by itself. With the foundation of the
United Nations, a transformation has been produced regarding the
obligations of third parties and administering powers. Nowadays, there
is no doubt that there is a legal obligation to grant, as soon as
possible the independence to the colonized people if this is its wish
freely expressed. This political obligation is complemented with a
progressively stricter obligation to avoid any economic activity which
may obstacles the independence of the non autonomous territory.
The legal status of Spain in the Western Sahara has known three
different stages: On the first (until November 1975) it was undoubted
its quality of “Administering power” de facto and de iure; on the
second (November 1975-February 1976) its legal position of
Administering power was blurred by a de facto and probably illegal
“tripartite administration” (Spain-Morocco-Mauritania); on the third
(February 1976 until now), Spain unilaterally abandoned its position as
“Administering power”, but the UN did not accept this abandon, so that
it is considered a “de iure” Administering power, although still
exercises some “de facto” administration also.
Even if its position is mainly a “de iure” Administering power, Spain
has obligations, political and especially economic, that must be
fulfilled. The developments of the case show that there have been some
economic and legal issues where Spain had to take position
vis-à-vis these obligations. The most well-known is the
fisheries agreement between the UE and the Kingdom of Morocco affecting
the waters of the Western Sahara. The evidence is that Spain is not
complying its legal obligations as administering power and so it can be
held responsible for the violation of its obligations contained in the
International Law. The special characteristics of the case make it
highly recommendable to ask the International Court of Justice for an
advisory opinion about how can Spain (or other administering power
being the case) fulfil its political obligations vis-à-vis the
Western Sahara to facilitate the decolonization of the territory.
Notes
1. UN Doc. A/31/56 S/11997. For the
printed text, see Official Records of the Security Council,
Thirty-first Year, Supplement for January, February and March 1976;
Published also, in the newspaper ABC (27-II-1976), p. 15-16 and in De
Piniés, La Descolonización española, pp. 809-810.
2. Letter addressed on 2 February 2006
to the UN Secretary-General by Moroccan Minister of Foreign Affairs
Mohamed Benaissa. The Moroccan Press Agency (MAP) and the newspaper Le
Matin have reproduced several passages of this letter.
3. on AENA
website
4. This information was Published in several
news: Press releases from Agencia
Canaria de Noticias-CAN (
7-10-2004) , La
Opinión de Tenerife
(11-10-2004)
5. http://www.oceansatlas.com/unatlas/issues/emergencies/gmdss_sar/SARMAP.PDF
VI. BIBLIOGRAPHY
James Brown Scott, The Spanish Origin of International Law, The
Clarendon Press, Oxford, 1934.
C.I.J., Mémoires, Sahara Occidental, vols. I & II
(Exposés écrits et documents)
Melchor Cano, De dominio indiorum, 1546 (in Luciano Pereña
Vicente, Misión de España en América, CSIC,
Madrid, 1956, p. 90 ss.).
Bartolomé de Carranza, Ratione fidei potest Caesar debellare et
tener indos novi Orbis, 1540 (in Luciano Pereña Vicente,
Misión de España en América, CSIC, Madrid, 1956,
p. 38 ss.).
José Ramón Diego Aguirre, Historia del Sahara
Español, Kaydeda, Madrid, 1988
East Timor (Portugal v. Australia), Judgement, ICJ Reports, 1995, p. 90.
Enrico Milano, “The new Fisheries Partnership Agreement between the
European Community and the kingdom of Morocco: fishing too south?”
Anuario de Derecho Internacional, vol. XXII (2006), p. 413 ss.
Jaime de Piniés y Rubio, La Descolonización
Española en Naciones Unidas, Centro de Estudios Políticos
y Constitucionales, Madrid, 2001.
Carlos Ruiz Miguel, “The Self-determination referéndum and the
role of Spain, in Karin Arts and Pedro Pinto Leite (eds.) Internacional
Law and the question of Western Sahara, IPJET, Leiden, 2007, p. 3005 ss.
Francisco de Vitoria, De indis recenter inventis, 1539 (ed. Alonso
Getino, Madrid, 1934).
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