A political solution for Western Sahara
- Historical context
- Stalemate in the process and the search for a political solution
- Morocco's Autonomy Plan as a viable alternative
- Main features of the autonomy statute
- Reaction of the Security Council to the Moroccan Autonomy Plan
- The latest Security Council Resolution
- What is the principle of self-determination?
- Who are the Saharawi people?
- Is the Polisario a democratic organisation?
- Some final reflections
This analysis is based on an eminently legal approach to the Saharawi dispute, bearing in mind that, according to international law, the interminable conflict in Western Sahara is an unfinished process of decolonisation that began after Spain's withdrawal from the territory in 1975 and has persisted for half a century.
During this long period of time there has been the permanent suffering of the Saharawi population, whose welfare has been relegated in the negotiation process.
It should be noted that Article 73.1 of the Charter of the United Nations establishes as a ‘sacred obligation’ the promotion of the welfare of the inhabitants of non-self-governing territories until they attain full self-government.
Historical context
To contextualise the following considerations, I am going to refer in a schematic way to some events of historical relevance and their legal consequences.
In 1884 the Spanish protectorate over Western Sahara was established. This was one year before the Berlin Conference, in which the great European powers divided up Africa among themselves.
In 1958 the Spanish Sahara province was created with the intention of the Spanish state annexing the territory.
In 1963, Western Sahara was included in the list of non-autonomous territories of the United Nations (UN) to which resolution 1514 of the General Assembly (GA) of 14 December 1960 on the granting of independence to colonial peoples was applicable, which implied the recognition of the right to self-determination of the Saharawi people.
In 1970: Resolution 2625 (XXV) of the General Assembly which established the principles of International Law concerning friendly relations and cooperation between States, including among them the principle of equal rights and the self-determination of peoples.
The year 1975 was a crucial year:
The ruling of the Hague Tribunal was made public, partially dismissing the Moroccan lawsuit and recognising the right of the Saharawi people to self-determination.
After the Green March, Spain withdrew from the process following the signing of the Madrid tripartite agreements that ceded the administration of the Sahara to Morocco and Mauritania, which triggered the war with the Polisario Front.
In 1979 the Polisario Front signed a peace agreement with Mauritania. From then on, Morocco occupied the entire territory.
In 1988, Morocco and the Polisario gave their assent to the settlement plan proposed through the mediation of the African Union and the UN, to hold a referendum on self-determination, through the United Nations Mission for the Referendum in Western Sahara (MINURSO)
MINURSO was deployed in 1991, coinciding with a ceasefire after 16 years of war.
I have taken the liberty of providing this brief chronology to summarise the most relevant events that led, in the first instance, to the conflict being framed within international law, under the supervision of the United Nations. It went from being an armed conflict to a legal dispute which, according to the agreement, should have been resolved by holding a referendum on self-determination, with the option of independence and the participation of Saharawi residents included in the Spanish census of 1974.
Stalemate in the process and the search for a political solution
I will not go into detail about other well-known subsequent events, such as the failure to comply with the Houston Accords signed in 1997 and the difficulties that arose in preparing the voter census. The truth is that the process was paralysed and that the UN did not have the power to impose a solution, as the dispute fell under Chapter VI of the Charter, which only empowers the Security Council (SC) to urge the parties to reach a peaceful settlement of the controversy. The possibility of categorising it as Chapter VII, relating to possible coercive actions to be adopted in the case of threats to peace or acts of aggression, was not considered.
This deadlock led the UN Secretary General, Kofi Annan, in his report to the Security Council on 17 February 2000, to express doubts about the referendum taking place and about its effectiveness, as there was no power of coercion to enforce its result if either of the parties did not accept it. He pointed out that, given the paralysis of the peace process, it was necessary to explore other alternatives to achieve a prompt, lasting and agreed solution.
From Resolution 1570 (2004) onwards, there is no mention of the referendum and the parties are urged to seek a just, lasting and mutually acceptable political solution that provides for the self-determination of the people of Western Sahara, within the framework of the provisions of the Charter of the United Nations.
Morocco's Autonomy Plan as a viable alternative
In 2006, faced with the stalemate in the process, King Mohammed VI created the Royal Advisory Council for Saharan Affairs (CORCAS) and charged it with presenting a proposal for self-government and socio-economic development for Western Sahara under Moroccan sovereignty, inspired by the Spanish system of autonomous regions.
In April 2007, on the basis of the CORCAS report, Morocco officially presented its autonomy plan for Western Sahara to the President of the Security Council at the United Nations, as a basis for negotiations to progress towards a political solution.
Main features of the autonomy statute
The Plan envisaged a series of powers for the autonomous region of the Sahara, including local administration, economic development, regional planning, investment, trade, industry, tourism and agriculture. It would also be entrusted with the management of infrastructure, water, electricity, public works, transport, as well as the protection of the environment and Saharawi cultural heritage; and would have the necessary financial resources at its disposal.
The Moroccan state would reserve exclusive powers in the areas of national defence and external security, foreign policy, the constitutional and religious powers of the King, the national currency, flag and anthem.
The autonomous region would have its own institutions to exercise and develop its powers, through a regional parliament, elected by universal suffrage of the resident population, which would have specific representation of the Saharawi tribes. It would also have an autonomous government led by a president, elected by the national parliament, who would appoint the members of the regional government. The creation of regional courts within the Moroccan judicial system and a High Court of Justice for the autonomous community was also planned.
As an implementation mechanism, it was envisaged that the autonomy plan would be submitted for consultation by means of a referendum of the Saharawi population, so that it would be recognised as a mechanism of self-determination within the framework of the UN, and the Moroccan Constitution would subsequently be modified to incorporate the statute of autonomy.
Finally, a transition process would be opened to ensure the comprehensive reintegration of refugees and repatriated persons, with a commitment to apply a general amnesty. Subsequently, in 2015, the Moroccan Economic, Social and Environmental Council (CESM) proposed the creation of an interregional fund to facilitate the return and integration of Saharawi populations who are refugees in the Tindouf camps, which has not yet been set up.
Reaction of the Security Council to the Moroccan Autonomy Plan
In 2007, the UN Security Council adopted Resolution 1754, which marked a milestone in the approach to the resolution of the Western Sahara conflict. This resolution responded to the presentation of the Autonomy Plan by Morocco and a proposal for rejection by the Polisario Front.
The key points of this resolution are as follows: a) it represented a change in the UN's strategy, prioritising the negotiated route and the search for a political solution; b) it did not impose the obligation of a referendum, but it did demand that the process reflect the real will of the people and c) it reinforced Morocco's position, by considering the Autonomy Plan to be a serious, realistic and credible proposal for the international community.
The latest Security Council Resolution
Resolution 2756 (2024) of October 2024 was adopted with 12 votes in favour. Russia and Mozambique abstained, while Algeria, which sits on the Security Council as a non-permanent member, did not participate in the vote in protest at the absence of provisions relating to the monitoring of human rights in the territory.
This Resolution followed the line of previous ones, in the sense that it extended the mandate of MINURSO for one year, made no mention of the obligation to hold a referendum, reaffirmed the need for a mutually acceptable political solution, realistically, without imposing a specific model, and strongly reiterated the request to Polisario to proceed with the registration of refugees in the Tindouf camps.
What is the principle of self-determination?
Article 1.2 of the UN Charter includes it among the purposes of the United Nations to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.
Resolution 2625 (XXV) of the United Nations General Assembly, of 24 October 1970, developed the content of the right of self-determination of peoples to decide their political status, without external interference, to put an end to colonialism, taking into account the freely expressed will of the peoples.
The following are forms of exercising the right to self-determination: the establishment of a sovereign and independent state, free association or integration with an independent state and the acquisition of any other political status freely decided.
Who are the Saharawi people?
The Saharawi people are the subjects entitled to the right to self-determination in Western Sahara, according to the UN, the International Court of Justice and the process of decolonisation.
Consequently, all native Saharawis should be included, not just the refugees in Tindouf, since the Saharawi population is distributed in various regions due to the Western Sahara conflict.
According to the most accepted estimates of their distribution:
1. Tindouf camps, Algeria
Number of refugees: according to the UNHCR, it is estimated that around 90,000 Saharawis reside in the refugee camps in Tindouf, based on the analysis of satellite images and other indirect methodologies, due to the lack of an official census.
2. Territories under Moroccan control in Western Sahara
Saharawi population: it is estimated that between 90,000 and 120,000 native Saharawis or their descendants reside in the areas of Western Sahara administered by Morocco.
3. Mauritania
Saharawi refugees: in 2009, it was estimated that approximately 26,000 Saharawis were living in Mauritania in refugee-like conditions.
4. Spain and other countries
Saharawi community: estimates range from 3,000 to 12,000 people.
Although these figures are estimates, it could be hypothesised that the approximate Saharawi population worldwide is between 209,000 and 248,000 people. This means that the 90,000 refugees in Tindouf would represent approximately between 36 and 43% of the total Saharawi population, which implies that the majority of Saharawis (more than 50%) do not reside in the Tindouf camps and are not represented by the Polisario.
Is the Polisario a democratic organisation?
The elections held in the refugee camps in Tindouf, organised by the Polisario Front, cannot be considered fully democratic in terms of international law, which demands political pluralism and direct universal suffrage.
There are numerous reasons that limit their democratic character, among which it is worth mentioning that the Polisario is the only permitted political organisation, which prevents the existence of a formal opposition or electoral alternatives within the system, since there is no competition between different parties or candidates with different ideologies.
Furthermore, the right to vote is limited and direct universal suffrage is not applied, insofar as only delegates appointed within Polisario structures can vote, without the general population of the camps being able to participate directly in the election of the political leadership. In addition, no electoral supervision mechanisms have been allowed by independent international organisations to guarantee the transparency of the process and there are unaddressed complaints about the control of dissent and the lack of freedom to express dissenting opinions within the camps.
Therefore, the self-proclaimed Sahrawi Arab Democratic Republic does not have an electoral system compatible with international standards for free and fair elections, as the political structure in the camps is based on a model of centralised leadership without institutions to guarantee the alternation of power.
In short, elections within the Polisario are held every four years, but they are not held by universal suffrage or in a framework of political pluralism, which limits their democratic character according to international standards. Therefore, the system is designed to maintain the Polisario's control without political competition, which limits the participation and genuine representativeness of the Saharawi refugee population.
Some final reflections
- The solution to the conflict must be orientated towards the interests of the Saharawis, allowing those refugees and exiles who so wish to return to their homeland.
- The priority must be the well-being of the Saharawi people, ensuring a system of self-government under respectable conditions. Only through a negotiated political solution can a lasting peace be achieved.
- The option of independence is not feasible.
- The Moroccan autonomy plan is the only realistic solution. It is a proposal or starting point open to negotiation and improvement.
- Negotiating the Moroccan proposal does not mean the Saharawis are giving in or surrendering, but is the result of the legitimate struggle of a noble people in defence of their rights.
- Autonomy within Morocco must guarantee the political, cultural and social rights of the Saharawis and not be imposed unilaterally.
- Although the referendum with the option of independence is not compulsory, the autonomy solution must genuinely reflect the will of the Saharawis and therefore should be subject to a popular vote.
- The agreement must also ensure the full reintegration of the Saharawis, who will have to be provided with socio-economic and housing assistance to enable them to start a dignified life in their homeland under good conditions.
- The longer it takes to discuss this initiative, the more difficult it will be to reach a reasonable agreement in the interests of the Saharawis, as Morocco will be in a stronger position and the current geopolitical context is not at all favourable.
- The Saharawi people are the ones with the right to self-determination, while the Polisario, although it is the interlocutor in the decolonisation process under the aegis of the United Nations, is not a democratic organisation, nor does it represent the majority of the Saharawi people.
- The Movement Saharawi for Peace has positioned itself as a political alternative to the Polisario Front, promoting a negotiated and peaceful solution to the Western Sahara conflict.
Ángel Llorente, magistrate