In a recent article entitled The Responsibility of the UN Security Council in the Case of Western Sahara, published in the journal International Judicial Monitor, Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, suggests three possible options for solving the conflict in the Western Sahara, in view of reflections by the UN Secretary-General in his report to the Council on the situation in that territory.
In that report, dated 10 April 2014, the UN Secretary-General indicated that ‘In the light of the presence of Western Sahara on the list of Non-Self-Governing Territories since 1963, the efforts of the United Nations, through the work of my Personal Envoy, my Special Representative and MINURSO [United Nations Mission for the Referendum in Western Sahara], will remain highly relevant until its final status is established’. In the event of no progress occurring before April 2015 (scheduled date for renewal of the MINURSO mandate), the Secretary-General considered that the moment would have come for the members of the Security Council to undertake a thorough review of the framework established in April 2007 for the negotiation process between the parties in conflict.
The question is, Corell asks, how the Council should now address the main issue, namely the question of providing for the self-determination of the people of Western Sahara. This process has now gone on for decades, and it is obvious that the current negotiation has become a charade that has come to an end. How this should be done is a political issue that the Council simply has to deal with. But any solution must be in conformity with international law. The Council, Corell indicates, must now examine more radical options than applied in the past, among them the following three:
1) Transform MINURSO into an operation similar to the United Nations Transitional Administration in East Timor (UNTAET), which was endowed with overall responsibility for the administration of East Timor and empowered to exercise all legislative and executive authority, including the administration of justice.
2) Order Spain to resume her responsibility as Administering Power in Western Sahara. Yet given that Spain relinquished that responsibility (a ‘sacred trust’, according to Article 73 of the UN Charter) in 1976, this option, although legal, may not be advisable. An additional dilemma in this context is that Spain is now a non-permanent member of the Security Council.
The problem with both these options is that they require the organisation of a referendum in which the people of Western Sahara can exercise its right to self-determination. This means that the voter identification process, which has been a constant problem over the years, will still be a major complication.
3) In view of the fact that the issue of Western Sahara has been on the agenda of the United Nations for four decades, the solution may be a third and more radical option, namely that the Security Council recognises Western Sahara as a sovereign state. Also this option should be acceptable from a legal point of view. It would not deprive the people of Western Sahara from seeking a different solution to their self-determination in the future, if they so wish.
The latter option entails, above all, a major effort to support capacity-building for self-government. Otherwise, the option may result in the creation of a failed state, which will cause serious risks, not least in view of the security situation in certain neighbouring states. A solution here might be that the Council gives effect to its decision on a date maybe five years ahead, while in the meantime entrusting MINURSO with a mandate similar to the one given to UNTAET.
Hans Corell underlines that in making these suggestions, he is acting in his personal capacity only and with complete neutrality, with no other interest in this matter than that of the rule of law, and that the Member states of the United Nations respect the norms that the Organisation itself has established. The suggestions are based on his experiences as a judge and legal adviser for many years in his country (Sweden) and, later, as UN Legal Counsel for ten years. In fact, in 2002, at the Security Council’s request, Hans Corell issued a well-known report on Western Sahara, on the legality of certain acts of the Moroccan authorities, specifically the tendering and signing of contracts with foreign companies for the prospecting of mineral resources in this territory. The report concluded that, if prospecting and development operations were undertaken in the future without taking into account the interests and wishes of the people of Western Sahara, these would be a violation of the principles of international law applicable to the Non-Self-Governing Territories. Later, Corell sustained that the Fishing Agreements signed between the European Union and Morocco in 2007 were not pursuant to international law in regards to Western Sahara.
The reason that Hans Corell is now posing the question of Western Sahara is because he considers that we are facing a situation in which the Security Council runs the risk of not fulfilling the terms of its mandate, as defined by Article 24 of the UN Charter, which places on the Council the responsibility for maintaining peace and international security. ‘In the past, there have been serious deficiencies in this respect, including cases where permanent members of the Council have even violated the UN Charter. This failure to respect and defend the rule of law at the international level simply has to come to an end,’ Corell stresses. ‘The authority of the United Nations must be upheld, and the Council must be in the lead. It is therefore imperative that the Council in dealing with the question of Western Sahara now acts with authority, determination and consequence in accordance with the law.’
The sentiments on this by former senator George McGovern (in the Preface of Stephen Zunes and Jacob Mundy’s book, Western Sahara: War, Nationalism, and Conflict Irresolution) are quite clear: ‘What is at stake here is more than just the fate of a few hundred thousand Sahrawis living under Moroccan military occupation in Western Sahara and in refugee camps in neighboring Algeria. As the authors [S. Zunes and J. Mundy] observe, what ultimately is at stake is the post-World War II international legal system. If the people of Western Sahara are not granted the right to choose their own future, including the option of independence, and Morocco’s control of the territory is allowed to stand, it will be the first time since the founding of the United Nations that the international community has allowed a recognized non-self-governing territory to be forcibly annexed without the population’s consent and the first time a country has been allowed to expand its territory by military force against the wishes of a subjected population. Only the Arab territories still occupied by Israel since 1967 remain under such belligerent foreign control. And although the resolution of that conflict is also long overdue, at least it has gotten the international community’s attention, whereas the comparable situation in the Maghrib has remained in relative obscurity.’
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Source: Africa Conflict Monitor