Morocco has occupied Western Sahara since October 1975.
Morocco has been occupying Western Sahara since 1975. Morocco is opposed by the Frente Popular para la Liberación de Saguia el Hamra y de Río de Oro (Polisario Front), a national liberation movement set up in 1973 and recognized as representing the people of Western Sahara by the United Nations General Assembly in 1979. See UNGA Res 34/37, 21 November 1979, §7. Seeking self-determination for the people of Western Sahara, the Polisario Front established the Sahrawi Arab Democratic Republic (SADR) in 1976. However, the question of whether the SADR is a state as defined by international law remains controversial. For further information and references on statehood, see ‘international armed conflict – secessionist entities’ in our classification section. Morocco controls two-thirds of the territory while the Polisario Front governs the remaining area.
The United Nation Mission for the Referendum in Western Sahara (MINURSO) was established in 1991 with Security Council Resolution 690 UNSC Res 690 (1991), 29 April 1991 in order to monitor the post-conflict situation, namely a ceasefire and reduction of troops on the territory, and to facilitate a freely-held referendum on the destiny of the territory. However, this process is currently delayed.
The region was a Spanish protectorate known as Spanish Sahara until the beginning of the decolonization process in the 60s. Following the inclusion of the region on the list of Non-Self Governing Territories under Chapter XI of the United Nations Charter, the General Assembly confirmed in a series of resolutions See for example UNGA Res 2072 (XX), 16 December 1965; UNGA Res 2229 (XXI), 20 December 1966; UNGA Res 2354 (XXII), 19 December 1967, UNGA Res 2428 (XXIII), 18 December 1968. that the people of Western Sahara were entitled to the right to self-determination in accordance with General Assembly Resolution 1514 (XV). See UNGA Res 1514 (XV), 14 December 1960.
In November 1975, Spain, Morocco and Mauritania signed the Madrid Accords, setting forth the complete withdrawal of the Spanish colonial administration from Spanish Sahara, and dividing the administration of the region between Morocco and Mauritania. However, the Madrid Accords did not and could not transfer sovereignty over the territory of Western Sahara to Morocco. As the administering colonial power, Spain itself did not possess sovereignty over the territory and hence ‘could not have unilaterally transferred’ sovereignty to Morocco and Mauretania. See Letter Dated 29 January 2002 from Under-Secretary-General for Legal Affairs, the Legal Counsel, Addressed to the President of the Security Council, UN Doc S/2002/161, 12 February 2002, §§4-5. In 1975, the International Court of Justice rejected the territorial claims advanced by Morocco and Mauritania and recognized the right to self-determination of the people of Western Sahara. ICJ, Western Sahara, Advisory Opinion, 16 October 1975, §162. In 2016, the European Court of Justice also recognized the right to self-determination of the people of Western Sahara, see ECJ, Council of the European Union v Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario), Judgment, C-104/16 P, 21 December 2016, §92.
The Polisario Front, backed by Algeria, launched what became a 16-year war for independence against the presence of Mauritanian and Moroccan forces. After Mauritania withdrew from the conflict in 1979, Morocco annexed the region initially assigned to Mauretania. C. Gaffey, ‘Western Sahara: What is the 40-year Dispute All About?’, Newsweek, 9 March 2016. Shortly afterwards, in Resolution 34/37, the General Assembly deplored the ‘continued occupation of Western Sahara by Morocco,’ urged Morocco ‘to terminate the occupation’, and recommended the inclusion of the Polisario Front, ‘the representative of the people of Western Sahara’ in finding a solution. UNGA Res 34/37 upload document, 21 November 1979.
In September 1991, a ceasefire was signed between the government of Morocco and the Polisario front, effectively ending the 16-year confrontation as an active conflict, but the military occupation continues. The conflict is now at a standstill, though there is still underlying tension as both parties control different parts of the territory, with no resolution in sight. On 25 February 2017 Morocco announced it would withdraw its troops from the United Nations buffer zone, to reduce military tensions in the region. ‘Morocco to Withdraw Forces from Western Sahara Buffer Zones’, France 24, 27 February 2017.
On 29 April 1991, the United Nations Security Council Resolution 690 established the United Nation Mission for the Referendum in Western Sahara (MINURSO) to facilitate the referendum on the destiny of Western Sahara. UNSC Res 690 (1991), 29 April 1991. This mandate has been renewed regularly since then, the most recent one being Security Council Resolution 2440 (2018) which authorizes six-month extension of the mandate of MINURSO until 30 April 2019, calling upon the parties to the dispute over that territory to engage constructively in during the planned talks at the end of 2018 to find a just, lasting and mutually acceptable solution which will provide for the self-determination of the people of Western Sahara. UNSC Res 2440 (2018), 31 October 2018. For a full list of the Security Council Resolutions renewing the mandate, see ‘UN Documents for Western Sahara: Security Council Resolutions’, Security Council Report, last updated March 2019.
In line with Resolution 2440, an initial round-table discussion was held between participants from Morocco, the Frente Polisario, Algeria and Mauritania on 5 and 6 December 2018 for the first time in six years, under the initiative of the Personal Envoy of the Secretary-General for Western Sahara, Horst Köhler. UNSC Press Statement on Western Sahara, 31 January 2019. Upon the conclusion of the first round discussion, the UN envoy pointed out that further discussions are planned in the first quarter of 2019 and that there is hope that the discussion will deliver positive results. Western Sahara: a 'peaceful solution’ to conflict is possible, says UN envoy, 6 December 2018.
The Polisario Front’s declaration to apply the Geneva Conventions and Additional Protocol I
In June 2015, the Polisario Front deposited a unilateral declaration under Article 96(3) Additional Protocol I with the Swiss federal government. Pursuant to this declaration, the Polisario Front undertakes to apply the Geneva Conventions and Additional Protocol I in its conflict with Morocco. The Swiss federal government, the depositary for the Geneva Conventions and its Additional Protocols, accepted the declaration and notified it to other state parties. Such a declaration can be made only by an authority representing a people involved in a fight falling under Article 1(4) Additional Protocol I. Its acceptance implicitly recognizes that the Polisario Front and Morocco are in a situation falling under Article 1(4) Additional Protocol I, i.e. an armed conflict in which peoples are fighting against colonial domination, alien occupation or racist regimes. For further information and additional references, see ‘international armed conflict – national liberation movements’ in our classification section; A. Bellal, The War Report. Armed Conflicts in 2016, Geneva Academy of International Humanitarian Law and Human Rights, March 2017, p 46 ff.
The Polisario Front proclaimed the establishment of the Sahrawi Arab Democratic Republic in February 1976. Yet, while the right to self-determination of the people of Western Sahara has been recognised, UNGA Res 34/37, 21 November 1979. The International Court of Justice and, more recently, the European Court of Justice, also recognized their right to self-determination, see ICJ, Western Sahara, Advisory Opinion, 16 October 1975, §162; ECJ, Council of the European Union v Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario), Judgment, C-104/16 P, 21 December 2016, §92. the statehood of the Sahrawi Arab Democratic Republic is a controversial issue. The SADR has obtained recognition by a number of states, but others have withdrawn or frozen recognition. General international law determines whether an entity possesses statehood. It remains debated whether recognition is a criterion. For further information and references on statehood, see ‘international armed conflict – secessionist entities’ in our classification section. The SADR does not have observer status with the United Nations, but it became a full member of the Organization of African Unity (OAU), now the African Union, in 1984. See A. Bellal, The War Report. Armed Conflicts in 2016, Geneva Academy of International Humanitarian Law and Human Rights, March 2017, p 46.
SADR is a founding member of the African Union. Morocco withdrew from the Organization on 12 November 1984 by objecting the admission of SADR to the OAU, though on 30 January 2017 it was readmitted as a member state of the African Union. African Union, The 28th African Union Summit, Press Release No.17/28 AU Summit, 31 January 2017. This readmission of Morocco to the African Union does not have an effect on the conflict classification issue i.e. occupation, and the statehood issue, though it might have other legal implications. For the brief discussion on the impact of Moroccan entry to the AU on its obligations to SADR and its statehood, see Arpan Banerjee, ‘Moroccan Entry to the African Union and the Revival of the Western Sahara Dispute’, Harvard International Law Journal, 11 December 2017.
Views of parties to the conflict and the international community
Morocco continues to claim sovereignty over the territory, but the International Court of Justice rejected its territorial claims because it had no legal ties of territorial sovereignty on Western Sahara. ICJ, Western Sahara, Advisory Opinion, 16 October 1975, §129. Amongst other actors, the United Nations General Assembly, the International Court of Justice and the European Court of Justice all recognized the right to self-determination of the people of Western Sahara and the General Assembly described the situation as an occupation. See GA Res 34/37, 21 November 1979; ICJ, Western Sahara, Advisory Opinion, 16 October 1975, §162. In 2016; ECJ, Council of the European Union v Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario), Judgment, C-104/16 P, 21 December 2016, §92.
Against the background of the dispute concerning the validity of Fisheries Agreement and 2013 Protocol concluded between the European Union and Morocco, the European Court of Justice's Advocate General submitted an opinion in January 2018 that reaffirms the right to self-determination of the people of Western Sahara and confirms that Morocco is the occupying power of Western Sahara. ECJ, Western Sahara Campaign UK, The Queen v Commissioners for Her Majesty's Revenue and Customs, Secretary of State for Environment, Food and Rural Affairs, Opinion of Advocate General Wathelet, C-266/16, 10 January 2016, §111 and §249. Hence, according to the Advocate General, the Fisheries agreement is invalid because it violates the right to self-determination of the people of Western Sahara and because the manner and form of its conclusion did not comply with the principle of permanent sovereignty over natural resources or international humanitarian law applicable to the conclusion of international agreements concerning the exploitation of natural resources of occupied territory. ECJ, Western Sahara Campaign UK, The Queen v Commissioners for Her Majesty's Revenue and Customs, Secretary of State for Environment, Food and Rural Affairs, Opinion of Advocate General Wathelet, C-266/16, 10 January 2016, §256 ff.
The law of military occupation is set forth in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land, the 1949 Geneva Conventions (IV) Relative to the Protection of Civilians Persons in Time of War and the 1977 Additional Protocol I applicable to International Armed Conflicts.
Morocco is a party to the four 1949 Geneva Conventions and Additional Protocol I. Moreover, in 2015 the declaration of the Polisario Front to apply the Geneva Conventions and Additional Protocol I were accepted by the Swiss federal government, the depositary. For further information, see the classification section for Western Sahara above and ‘international armed conflict – national liberation movements’ in our classification section.
Customary international humanitarian law is also applicable during occupation; it complements the protection granted by treaties and binds all parties to the conflict. Customary international law consist of unwritten rules that come from a general practice accepted as law. Based on an extensive study, the International Committee of the Red Cross maintains a database on customary international humanitarian law.
In addition to international humanitarian law, international human rights law continues to apply during times of occupation.