Western Sahara: Exploiting the People`s Resources

Among the alliances of HLRN against colonization of indigenous peoples’ lands is the Geneva Support Group of NGOs for the Protection and Promotion of Human Rights in Western Sahara. The following is a backgrounder explaining the principal issues arising from the occupation of Western Sahara, which completes 45 years in 2020.

The illegal exploitation of the natural resources and economic activities that affect the interests and human rights of the Sahrawi People

Introduction

Since 1884, Western Sahara was under Spanish colonial rule. In December 1963, the UN General Assembly (UNGA) added Western Sahara into the list of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in UNGA resolution 1514 (XV).

On 26 February 1976, Spain informed the Secretary-General that as of that date it had terminated its presence in Western Sahara and relinquished its responsibilities over the Territory. Since Spain withdrew from the Saharan colonized territory, Western Sahara became the only Non-Self-Governing Territory (NSGT) that has not an internationally recognized Administering Power.

Since the military invasion of the Territory by the Kingdom of Morocco in November 1975, Western Sahara became and still is today the only Non-Self-Governing Territory under the illegal military occupation of a third country.

The invasion of Western Sahara was launched few days after the International Court of Justice released its Advisory Opinion, establishing unambiguously that “…the Court`s conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco…Thus, the Court has not found 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.”

An occupation that both, the UN Security Council (res. 380) and UNGA (A/RES/34/37 and A/RES/35/19), have condemned. Since then, the UNGA has repeatedly reaffirmed its interpretation of the legal status of Western Sahara as a Non-Self-Governing Territory, including in its resolution 74/97 where the UNGA reaffirms the inalienable right to self-determination of the Sahrawi people and the responsibility of the United Nations towards the people of Western Sahara.

The illegal occupation and attempted annexation of Western Sahara by the Kingdom of Morocco

The Principle of equal rights and self-determination of peoples contained in the UNGA resolution 2526 (XXV) states, inter alia, that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

The same Principle, also affirms that the territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it (not mentioning that of an Occupying Power); and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter.

Although the Kingdom of Morocco has signed the Settlement Plan in 1990, which led to the creation of the UN Mission for the Referendum in Western Sahara (MINURSO) in April 1991, it spared no efforts to impede the United Nations and the Organisation for the African Unity to organize the referendum in Western Sahara.

Throughout the years, the Kingdom of Morocco has included the large portion of the Non-Self-Governing Territory of Western Sahara it occupies in its administrative order, holding illegal legislative elections there to represent the Sahrawi people under occupation in its national parliaments.

The illegal military occupation and annexation of the large portion of the Non-Self-Governing Territory of Western Sahara has caused and continue to be the cause of serious and systematic violations of human rights, as well as of serious breaches of International Humanitarian Law.

In particular, it is to be highlighted the violations of Articles 31 and 32 (prohibition of coercion, corporal punishment, torture, degrading and inhuman treatments); Article 33 (prohibition of collective penalties, intimidation, pillage, reprisals); Article 49 (prohibition of deportations, transfers, evacuations); Article 53 (prohibition of destruction of real or personal property belonging, individually or collectively, to private persons); and Article 76 (on the treatment of detainees) of the Fourth Geneva Convention. Some of these violations may amount to war crimes, crimes against humanity and cultural genocide.

The illegal exploitation of the natural resources in the occupied Western Sahara

UNGA resolution 1803 (XVII)provides that the exploration, development and disposition of the peoples and nations natural resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities.

In his letter, dated 29 January 2002, addressed to the President of the UN Security Council, the Under-Secretary-General, Legal Advisor Hans Corell recalled that “…the General Assembly has consistently condemned the exploitation and plundering of natural resources and any economic activities which are detrimental to the interests of the peoples of those Territories and deprive them of their legitimate rights over their natural resources.”

In its recent judgments, the Court of Justice of the European Union (CJEU), when considering the application of the various agreements concluded between the European Union and the Kingdom of Morocco, has constantly reaffirmed that Western Sahara cannot be considered as part of the Kingdom and therefore that the agreements were not applicable to Western Sahara.

In clarifying the applicable law, the CJEU underlined that it is not necessary to determine whether such implementation is likely to harm [the Sahrawi people] or, on the contrary, to benefit it” (§106). It is sufficient to point out that, “in either case, that implementation must receive the consent of [the people of Western Sahara]”. The Court refers twice to the aforementioned UNGA resolution 34/37 that recognizes the Polisario Front as “the representative of the people of Western Sahara.”

Despite those judgments, the European Commission and the European Parliament decided to violate the European Union’s Treaty and the Principles of the Union’s external action by signing new agreements that cover the Occupied Non-Self-Governing Territories of Western Sahara.

Nevertheless, it is to be stressed that several companies and investment funds, like the Austrian chemical giant Borealis have withdrawn from Western Sahara.

Last 7 May, the German Federal Ministry for Economic Cooperation and Development declared that the existing contracts for development credit explicitly exclude the financing of economic activities in Western Sahara.

Economic activities that affect the interests of the Sahrawi People

In its annually adopted resolution on “Economic and other activities which affect the interests of the peoples of the Non-Self-Governing Territories,” UNGA reaffirms that the natural resources are the heritage of the peoples of the Non-Self-Governing Territories, including the indigenous populations and expresses its concern about any activities aimed at exploiting the natural and human resources of the Non-Self-Governing Territories to the detriment of the interests of the inhabitants of those Territories.

It further reaffirms the need to avoid any economic or other activities, including the use of the Non-Self-Governing Territories for military activity, that adversely affect the interests of the peoples of the Non-Self-Governing Territories and Calls upon all Governments that have not yet done so to take legislative, administrative or other measures in respect of their nationals and the bodies corporate under their jurisdiction that own and operate enterprises in the Non-Self-Governing Territories that are detrimental to the interests of the inhabitants of those Territories, in order to put an end to such enterprises.

UNGA also invites all Governments and organizations of the United Nations system to take all possible measures to ensure that the permanent sovereignty of the peoples of the Non-Self-Governing Territories over their natural resources is fully respected and safeguarded in accordance with the relevant resolutions of the United Nations on decolonization.

Recommendations

The undersigning organizations call upon:

• the UN Human Rights Council to implement OP5 of the UNGA resolution “Universal realization of the right of peoples to self-determination” and to effectively give special attention to violations of human rights, especially the right to self-determination, resulting from foreign military intervention, aggression or occupation and to create a mandate of Special Rapporteur on the Human Rights situation in the Occupied Western Sahara;

• the UN High-Commissioner for Human Rights to implement OP8 of the UNGA resolution “Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples by the specialized agencies and the international institutions associated with the United Nations” and to effectively provided assistance to the Non-Self-Governing Territory of Western Sahara as soon as possible;

• the UN High Commissioner for Human Rights to implement OP22 of the same UNGA resolution and to report to the Secretary-General on the implementation of that resolution;

• the Working Group on the issue of human rights and transnational corporations and other business enterprises to consider analyzing the economic and financial activities which affect the interests of the peoples of the Non-Self-Governing Territories;

• the Special Rapporteur on the independence of judges and lawyers to consider analyzing the legal treatment at the national and international levels of the illegal economic activities in the Non-Self-Governing Territory of Western Sahara.