Pilot edition, December 2012

Western Sahara Review

Revista del Sahara Occidental

Western Sahara Review promotes the right of the Sahrawis to self-determination.

It is politically independent. Its objective is to provide a forum for analysis, debate and information about the Sahrawi struggle. Contributions will include topics in the spheres of political strategy and diplomacy, history, law, economics, and culture. Articles published in the review are the views of their authors, who may prefer to remain anonymous to readers but must identify themselves to the editors. They may be written in English, Spanish or French. Once accepted for publication, they will only be edited for style and clarification. The review will be published on an occasional basis. The intention is that the review's content is original and does not repeat well known positions. It is not an academic publication although contributions from academics are welcomed but rather an attempt to provide readers with opinions and information with which to advance the cause of self-determination, a cause that is currently at an impasse. So, articles should be written in a style that is accessible to readers who are not expert in particular disciplines. Proposals for articles for future editions of the review are welcomed, particularly from Sahrawis living under occupation, in the camps, or in exile elsewhere. Copyright for the articles and photographs used remains with the originators. The review is published on line free of charge to make it accessible to as many people as possible. In return, readers are asked to publicise its existence to others to ensure that it is widely read and its articles widely discussed. The contact address for the review is: saharareview@gmail.com The major theme in this pilot edition is the sclerotic UN process. One article takes a pessimistic view of the ability of Special Representatives to achieve progress while another proposes revised tactics to reinvigorate the UN's approach to the issue. The core article of the edition argues for abandonment of the referendum as a strategy to achieve self-determination. We have an account of the establishment, aims and achievements of a school for cinematic arts in the refugee camps, and a superb photograph with extended caption and reflections on the meanings of a portrait.

Western Saharas zombie negotiations

Jacob Mundy The UN mission in Western Sahara has become a zombie. It has become a mindless, soulless peace process that exists only for itself. It is directionless yet self-sustaining. Successive UN envoys have been as thwarted by the parties to the dispute Morocco and the Western Saharan independence movement as by the only international body that can do anything to resolve the conflict, the UN Security Council. Roughly ten years ago, the UN abandoned any pretence of forcing Morocco to hold a referendum on independence, the whole reason the UN came to Western Sahara in 1991. Since 1997, a string of diplomats have held what might be one of the most difficult diplomatic postings in the world, the UN Secretary-Generals personal envoy to Western Sahara. In 2005, I interviewed a UN official who had almost been forced into this position. He was beside himself with joy at being removed from Western Sahara and reposted to Jerusalem. Where he held hope for peace between Israel and the Palestinians, he saw none for the dispute between Morocco and Sahrawi nationalists led by the Polisario Front. It is not just that Morocco and Polisario maintain diametrically opposed positions. The problem of Western Sahara is embedded in and interlocks with larger global forces that maintain the Western Sahara stalemate. The UN Security Council ostensibly wants a negotiated solution that provides for self-determination - but only if Morocco
3

agrees to it. And Morocco rejects Western Saharas universally recognized right to self-determination while Moroccos patron state, France, guarantees that Morocco will never be forced to do anything by the Council. The US and UK are more balanced, particularly given their security and energy interests in Algeria, Polisarios main supporter. But Washington and London, as well as Spain, the old colonial power, ultimately prize Moroccan stability over peace and justice in Western Sahara. Russia and China are largely indifferent. Meanwhile, Western Saharan refugees are enduring their fourth decade of exile in Algeria while some 200,000 Sahrawis live under Moroccan rule, one of the most intense and violent foreign occupation regimes currently in operation. In October 1975, when Morocco signalled its intent to invade Western Sahara, then under Spanish colonial administration, the UN Security Councils response was passive to the point of complicity. Most observers blamed the logic of the Cold War but the end of the US-Soviet rivalry did little to help end Moroccos illegal presence in Western Sahara. The end of the Cold War did bring a UN mission to organize a referendum in 1991, a referendum that Morocco attempted to rig by presenting thousands of its own citizens as natives of Western Sahara. It took the UN Mission for the Referendum in Western Sahara (Minurso) five years to sort out Moroccos imposters from bona fide natives. At the end of the process, when the majority of the international community expected the Security Council to order a vote, it instead asked the UN envoy, then former US Secretary of State James Baker, to search for another way to resolve the dispute. Bakers efforts were ultimately frustrated by Moroccos intransigence

on the issue of a referendum and the Councils unwillingness to confront Rabat. Baker resigned and Moroccos foreign ministry rejoiced. A far less famous diplomat, Peter Van Walsum of the Netherlands, tried to fill Bakers shoes from 2005 to 2008. His career in Western Sahara ended abruptly when he publicly stated that the Security Council would never force a referendum upon Morocco. This had been fact since 1975 but it was his prescription that made him persona non grata with Polisario for his opinion that the independence movement should give up its right to self-determination otherwise it would get nothing. Van Walsums undignified exit his contract was simply allowed to lapse by the UN Secretariat paved the way for the current UN envoy, former US Middle East ambassador Christopher Ross. Building upon Van Walsums one accomplishment, the orchestration of the first face-to-face meetings between Morocco and Polisario in over five years, Ross has held several rounds of negotiations. Earlier this year, however, it looked as if Ross was about to meet the fate of his two predecessors (or three predecessors, if you count Peruvian diplomat Alvaro de Soto, who was never even allowed to take the reins of the Western Sahara peace process in 2004-5). Ross apparently ran foul of the Moroccan regime, though the exact reasons remain unclear. From day one, the Moroccans were likely unhappy with Ross because they felt that Van Walsum had been unfairly punished for taking Moroccos side. Rosss background as an Arabist ambassador to Algeria also made Rabat uneasy, and it was clear from day one that Ross not only understood the conflict but had direct experience with it from his days in the
4

State Department. However, the rounds of negotiations presided over by Ross since his 2008 appointment have been more often criticised for their lack of ambition than any overt displays of sympathy for one side or the other. The fact that Moroccos refusal to work with Ross came after the April 2012 Security Council renewal of the Minurso mandate suggests that Rabat was unhappy with Ross confidential report to the Councils members. Given the trend in the conflict Morocco rejects Baker in 2004, Polisario rejects Van Walsum in 2008 it was widely thought that Ross trajectory in the Western Sahara peace process had run its course. So, it came as a surprise in early November 2012 to see Ross making his first visit to the actual occupied territory of Western Sahara under the guise of visiting the UN mission that his work is supposed to support. There he even met with some of the most prominent Western Saharan activists resisting the Moroccan occupation, an act of provocation that his predecessor would never have even contemplated. How to account for this new lease on life for Ross? It is not just that he kept his job but that he is allowed to carry forward a programme seemingly designed to rock the boat of the peace process. The most credible explanation is that the US government exerted pressure on Morocco and so France to let Ross keep his job. Whether or not this was a major or minor expenditure of its Security Council capital, it is clear that the US government has faith in Ross or, at least, is tired of the parties to the dispute setting the agenda. In 2011, following unprecedented violence inside Western Sahara and the events of the 'Arab Spring', the US government has used

what little leverage it has on the Council to address the human rights situation in Western Sahara. That leverage consists of threatening to use its veto against the now routine renewal of Minurso every April. Though Morocco opposes the fundamental reason for Minursos existence, the mission now functions as a buffer between Moroccan and Polisario forces, allowing the former to continue its campaign of colonising Western Sahara unabated. France relies on the argument that, without Minurso, there would be war in Western Sahara, an argument that garners some sympathy in London but, apparently, less in Washington. If this was the leverage Washington used to help Ross keep his job threatening to veto Minurso - it is a rare display of courage on the part of a Council member

vis-a-vis the Western Sahara conflict. In the larger scheme of things, this game of chicken could eventually backfire for Washington. While Minursos current status appears to serve the interests of Morocco, threatening to veto the mission's mandate in order to leverage cooperation from Rabat might one day simply prompt Morocco to call Washingtons bluff. When Morocco went toe-to-toe with Spain in 1975, the US opted to support Morocco. When Morocco called Bakers bluff in 2004, the George W Bush White House which won the 2000 election partly due to Bakers efforts in Florida supported Morocco rather than Baker. One day Morocco is going to call Washingtons bluff again. Over forty years of realpolitik in Western Sahara indicates who is likely to win.

A UN toolbox for Western Sahara

Francesco Bastagli The UN continues to be the paramount forum for the Sahrawi cause. There are two main reasons for this. The first is the global UN mandate for decolonisation and international peace and security. The second is the disappointing unwillingness of other international actors, such as the African Union and the European Union to play a more active political role on Western Sahara, proportioned to their stated values and responsibilities. This state of affairs makes it essential for the Sahrawi leadership to define a clear, robust and consistent strategy UN. The ultimate goal of a free and fair referendum for self-determination must be pursued over time through specific enabling steps. Here are some suggestions in this regard. The Group of Friends of the SecretaryGeneral on Western Sahara. Due to the limited or non-existent interest in the Western Sahara issue among most UN members, the influence of the Group of Friends cannot be overestimated. Whatever is agreed among Group members in advance of formal proceedings is decisive for UN action or inaction. The Group of Friends is composed of France, Russia, the United Kingdom, the US, and Spain. Politically, this composition is so tilted towards Morocco's views that it is like having the proverbial wolf look after a flock of sheep. Further, there is no geographical balance in the Group as is the norm at the UN. It is absurd and smacks of neo-colonialism that the Group should not include a single African country or any country that, since
6

the inception of the UN, has lived the experience of decolonisation and selfdetermination. The UK and others have recently put out feelers to broaden membership in the Group. They were stifled. It is essential that the legitimate demand for a more representative and equitable Group of Friends be pursued in a more formal, public and insistent way. Of course, there may be difficulties - such as determining which African country or countries should be included - but these can be overcome and are no excuse for the excessive caution prevailing at the moment. The General Assembly. Much attention is devoted to Security Council deliberations on Western Sahara. More should be done, however, to develop the potential role of the General Assembly and its committees, in particular the Fourth (Special Political and Decolonisation) Committee. These are avenues where, unlike in the Security Council, a decisive majority sympathise, or can be made to sympathise, with the Sahrawi cause. Yet, the yearly Fourth Committee debate on Western Sahara has become pointless. While leaving to the Security Council the peace and security dimension of the conflict, the Fourth Committee must be held accountable for the fulfilment of specific UN obligations under Chapter XI of the UN Charter, which deals with non-self-governing territories, and numerous Assembly resolutions on the same topic. Both the Charter and General Assembly resolutions stress that, pending self-determination, the social, economic and human rights interests of the inhabitants of non-self-governing territories are paramount. Normally, a temporary administering Power is designated to assist in the fulfillment of this sacred trust. But because of Spain's

refusal to take responsibility, and the illegality of Morocco's presence, no administering Power was ever designated for Western Sahara. The UN should step in and make this sacred trust its own. The Secretary-General could be asked by the General Assembly to: i) secure independent information on the health, education, economic and social conditions of the Sahrawis, whether they live in the Territory or in the refugees camps; ii) transmit as appropriate this information and related analyses to the Assembly and other intergovernmental bodies concerned; iii) advocate the basic human and economic rights of the Sahrawi people in compliance with universal UN standards; iv) formulate and implement a programme of assistance to the Sahrawis in pursuit of Charter and General Assembly mandates in favour of non-selfgoverning peoples. There are successful precedents for such programmes in similar situations and specific 'how-to' blueprints are available. By filling the current gap in information, advocacy and assistance, the UN would meet at least some of its institutional obligations and make partial amend for its failure to resolve the political impasse. A well-orchestrated lobbying effort to revitalise the deliberations of the General Assembly and its Committees must take place each year, well in advance of the fall session of the Assembly. The effort can be reinforced by making better use of the procedure whereby, every year, the Fourth Committee hears nongovernmental petitioners. At the moment this is a zero-sum game, as petitioners for and against the two opposing sides cancel each other out before an uninterested audience of third-ranking diplomats. While respecting their freedom to voice individual views, pro-Sahrawi advocates should be encouraged to go beyond broad
7

denunciations or proposals, such as an extension of the Mission for the Referendum in Western Sahara (Minurso) mandate to cover human rights, which are beyond the authority of the General Assembly. Rather, there should be a coordinated effort to make specific, actionable demands falling within the Charter responsibilities of the Fourth Committee and General Assembly, such as the one mentioned above. Further, a higher number of petitioners from the Moroccan-occupied territory should be brought before the Committee to bear witness in person. This would help ensure that Western Sahara is perceived, as it should be, as a country in shackles and not just one more faceless and remote political problem. Human rights protection. This is an important issue on two accounts: first, to alleviate the burden of the repressive presence of the Moroccan occupier on the Sahrawi population; second, to open up a series of social and political freedoms, such as freedom of expression, which would provide important tools for the cause in the Occupied Territory. Sahrawi human rights are possibly the only major concern to have gained some recognition at the UN in recent years. Indeed, promising developments may have already taken place by the time this note is issued, following the November briefing on Western Sahara at the Security Council. As the process unfolds, however, the Sahrawis and their supporters must remain vigilant. Nothing less than a fulltime human rights monitoring and advocacy presence should be accepted. If this can't be fully secured through an extension of the Minurso mandate, due to French opposition in the Security Council, other options should be pursued such as the inclusion of human rights in a programme like that mentioned under iv) above, or the establishment of a 'second

pillar' for human rights - in addition to and separate from the Minurso pillar - under the overarching authority of the Special Representative of the Secretary General for Western Sahara. Further, human rights monitoring should be a strictly international responsibility. Besides de facto accountability, occupying authorities should not be given any role that may directly or indirectly legitimise the Moroccan presence in the Territory. Sahrawi UN representation. The Sahrawi Arab Democratic Republic is a member of the Africa Union and is recognised by the AU and several countries outside Africa as the sole legitimate representative of the Sahrawi people. Starting from this platform, the SADR could move to acquire a stronger foothold in the UN and launch an effort to secure the most empowering observer status possible, along the lines of

the Palestinian experience. The pursuit of this option may be held in abeyance for a time, but it should be thoroughly studied and kept ready in the Sahrawi quiver. A vigorous pursuit within the UN of intermediate objectives such as those mentioned above would serve several purposes. It would shake up a stifling routine, of which the Sahrawis themselves at times fall victim, where tangible results are elusive and the process becomes an end in itself. It would provide a more specific set of goals around which to mobilise the political advocacy efforts of governmental and non-governmental supporters. It would also contribute to strengthening a sense of direction among the Sahrawis, who may be increasingly frustrated by the lack of recognisable progress towards the long-term goal of self-determination.

The question of Western Sahara: from impasse to independence

By Pedro Pinto Leite and Jeffrey J. Smith Western Sahara remains Africas last colony. The Sahrawi people with more half their population in refugee exile in desert camps and others under military occupation are among the last people to be waiting to realise the right to selfdetermination, a right that in its protection and assurance is a paramount duty of the organised international community, including the United Nations.1 Even with a formal process for their selfdetermination established more than 20 years ago, the right remains denied to the Sahrawi people. The international community has deferred to a United Nations that has proven unable to break the impasse over the future of the Sahrawi people because of a Security Council that is unwilling to act and a General Assembly which has relinquished its historical role to oversee decolonisation. Two other important norms of international law continue to be violated in Western Sahara, namely the prohibitions against territorial conquest
1

and aggression, intended to be the basis for peace and stability in the modern order among nation-states. These norms have been all but forgotten in the Sahara and the resulting apparent impunity enjoyed by Morocco is both an objectionable precedent and a phenomenon which damages international law. The case of Western Sahara could not be more clear, whatever ones perspective, including as a matter of international relations, law, the social and economic development of northwest Africa, and justice itself. Jacob Mundy, an American scholar who has written extensively on the question of Western Sahara, expresses the circumstances in the following way, with remarks that call to mind the logical construct of a Columbuss egg: The *International Court of Justices 1975+ opinion on Western Sahara is most often cited as proof definitive that Western Sahara is owed a referendum on selfdetermination. However, this claim is based upon a half-reading of the summary of the Courts opinion. A full reading of the Courts entire opinion shows that the ICJ was very clear that the sovereign power in Western Sahara was and is the native Western Saharans *the Sahrawi people+. The purpose of a self-determination referendum in Western Sahara is not to decide between competing sovereignties, whether Moroccan or Sahrawi, but to poll the Sahrawis as to whether or not they wish to retain, modify or divest their sovereignty. We need to stop talking about selfdetermination as an act that constitutes sovereignty in Western Sahara. Sovereignty is already

The term Sahrawi is used here as the name of the original people of the territory of Western Sahara, known as Spanish Sahara until 1975. Saharan is applied in the geographic context, while Saharawi is used in the formal name of the Saharawi Arab Democratic Republic. The Sahrawi population numbers about 350,000; 160,000 in the Tindouf camps, some 120,000 to 150,000 in occupied Western Sahara and the remainder a diaspora primarily in Mauritania and Spain.

constituted in Western Sahara. As the ICJ said, Western Sahara has never been terra nullius. 2 This article, inspired in part by Jacob Mundys reasoning and impelled by the stalled dynamic of realising the Sahrawi peoples rights and resolving their circumstances, aims to inquire into the issue of self-determination, a requirement presented to the Sahrawi as the only path to some future political and legal status including possibly as an independent state. From such a discussion, we advance a proposal to overcome the current impasse. The chimerical referendum Several observations should be made at the outset about a referendum for Sahrawi self-determination. The most evident is that a referendum a consultative electoral choice by the legitimate inhabitants of a colonised (i.e. non-self-governing) territory to settle upon a political status is not required including as matter of international law or the relevant UN decolonisation resolutions (notably General Assembly Resolutions 1514 (XV) and 1541 (XV) of 14 December 1960). A referendum is also not a matter of general UN policy or direction in decolonisation cases and it did not occur in the majority of cases during the era of decolonisation in the 1950s and 1960s. To be sure, a referendum properly done confers legitimacy on a United Nations which has an obligation to ensure (or at least establish the underlying conditions for) orderly and democratic
2

self-determination, especially where the organisation has a substantial role, such as in East Timor (Timor-Leste) and Namibia. The form of realising self-determination the modality of ensuring a colonised people have available to themselves an elective choice is less important than the substantive right to be decided upon, namely, continuation of colonisation (that is, incorporation into the colonising state), association with the former colonising state, or independence. The UN has always been clear that all three are available to such outcomes are to be always available to non-self-governing peoples, even as the number of cases dwindles, and it has particularly asserted such a range of elective choices as available to the Sahrawi people. The International Court of Justice has recently confirmed the substantive right: During the second half of the twentieth century, the international law of selfdetermination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation ... A great many new States have come into existence as a result of the exercise of this right.3 The conduct of a referendum organised by the UN as an ostensibly disinterested third party can also ensure a more politically acceptable outcome for the occupying state, as with Indonesia in Timor-Leste. Moreover, the important factor of political recognition of a new state if
3

The Question of Sovereignty in the Western Sahara Conflict, presentation at the IAJUWS conference La Cuestin del Shara Occidental en El Marco Jurdico Internacional, Las Palmas, Canary Islands (27-28 June 2008).

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, page 403 at paragraph 79.

10

independence is the choice of a selfdetermining people in the organised international community is a useful advantage. Finally, the need to promote peace, community order and social development in a newly independent former colony, especially after a period of annexation with possible in-migration by peoples from an occupying state, would seem in part to be helped by a transparent, externally conducted and democratic process. The origins of the UNs self-determination process for the Saharawi people should be recalled, noting this was first a responsibility of Spain as the coloniser of what was then Spanish Sahara, an obligation not diminished by Spains November 1975 agreement with Mauritania and Morocco to jointly administer the territory; the Madrid Accords. For its part, the UN plan for selfdetermination had its roots in efforts by the Organisation of African Unity (now the African Union) that began in 1982, culminating in a 1988 settlement proposal, agreed to by Morocco and the Polisario Front in the form of measures adopted by the Security Council in 1990 and 1991. The agreement came at a critical moment. 4 Mauritania had already abandoned its claim to the territory and recognised the Sahrawi Republic.5 From
4

the moment of Mauritanias August 1979 peace treaty and admission of its conduct of an unjust war the Sahrawi people had only a single occupier to contend with, the Moroccan army then suffering heavy losses.6 As such, the active end to hostilities came as a relief to Morocco. The 1988-91 settlement plan had several flaws, including Minursos lack of capacity to effectively ensure the registration of Sahrawi nationals for a self-determination referendum and the maintenance of peace and human rights in the occupied part of the territory leading up to the actual conduct of a referendum.7 The most serious problem was the flexibility given to Morocco to contest the enfranchisement process, the kingdom insisting that large numbers of persons with dubious connections to the Sahrawi people and the territory must be qualified, obstructive behaviour that continued until the practical end of the referendum registration process in 2004.8 In the result, during the active years of the UNs work toward a referendum Morocco was
6

The Settlement Plan, based on an earlier peace proposal by the Organisation of African Unity, was elaborated by the United Nations and entered into effect in September 1991 with a ceasefire. The plan foresaw the organisation of a referendum of self-determination in the months to follow. MINURSO, the United Nations Mission for the Referendum in Western Sahara, was established by UN Security Council Resolution 690 (29 April 1991) with the mission to monitor the cease-fire and conduct the referendum. 5 The Sahrawi Arab Democratic Republic (SADR) was proclaimed on February 27, 1976. Mauritania signed a peace treaty with the Sahrawis on August 5, 1979 and recognised the SADR on February 27, 1984.

This was acknowledged by credible observers and Morocco itself. See e.g. Desert War Flares Anew Chicago Tribune (October 6, 1988) at: <http://articles.chicagotribune.com/1988-1006/news/8802050099_1_polisario-front-moroccomoroccan>. 7 See, for example, the statement of former US Ambassador Frank Ruddy, who served as Deputy Chairman of MINURSO, to the Congress of the United States on January 25, 1995, at: <www.arso.org/06-3-1.htm>. 8 In the 1980s Morocco built a sand wall or berm 2,500 kilometres in length that divided the territory. Heavily garrisoned with more than 100,000 Moroccan FAR soldiers stationed along it, the berm is a complex structure of bunkers, barbed wire, electronic surveillance systems and millions of landmines. The berm was reportedly constructed with the material and financial assistance of Israel, the USA and Saudi Arabia. It has received little comment, including as to its environmental impact, and is maintained contrary to international humanitarian law. Satellite imagery of the berm can be viewed on the Google Earth website.

11

able to both boycott the process of voter identification and insist on the addition of large numbers of its nationals to voting lists, leading to the routine postponement of the referendum.9 MINURSO did, however, complete the process. Almost 10 years after MINURSO was established, the number of Sahrawis eligible to take part in the vote was fixed at 86,386. Morocco, fearing defeat in any referendum, immediately contested the result.10 The former United States Secretary of State James A Baker, appointed in March 1997 as the UN Secretary-Generals Personal Envoy for Western Sahara, presented a proposal to overcome such problems, the so-called Framework Agreement or Baker Plan I as it came to be known.11 But the plan did not provide for independence as an option12 - only
9

autonomy within Morocco13 - and was therefore at odds with an established norm of international law: the people of a non-self-governing territory can only be said to have reached a full measure of self-government if able to decide on an independent state, among other options.14 This norm is the core of the right of peoples to self-determination, widely considered jus cogens and one required to be recognised and upheld by all states as an obligation erga omnes.15 Backed thus by international law, the
Goulding, Peacemonger (London: John Murray, 2002) at pp. 214-215. 13 The 1999 referendum in Timor-Leste provided for the option of autonomy within the state of Indonesia as a matter of free choice by the Timorese people as well as a second option, independence. In contrast, the Western Sahara Framework Agreement required autonomy from the outset; it was to be imposed on the Sahrawi people. This contravened Principle IX of Resolution 1541 (XV) which provides that: [Any] integration should be the result of the freely expressed wishes of the Territorys peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes impartially conducted and based on universal adult suffrage. 14 A Non-Self-Governing Territory can be said to have reached a full measure of selfgovernment by: (a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State. UNGA Resolution 1541(XV) (15 December 1960), Principle VI. See also paragraph 6 of UNGA Resolution 742 (27 November 1953): [T]he manner in which Territories ... can become fully self-governing is primarily through the attainment of independence ..." 15 The exceptional importance of the principle of the self-determination of peoples in the modern world is such that today the principle has been held to constitute an example of jus cogens, that is, a peremptory norm of general international law, to quote the expression used in article 53 of the Vienna Convention on the Law of Treaties (Hector Gros Espiell, The Right to Self Determination: Implementation of United Nations Resolutions (Study Prepared by the Special Rapporteur of the Sub Commission on Prevention of Discrimination and Protection of Minorities) E/CN.4/Sub.2/405/Rev.1, 1980).

Ambassador Frank Ruddy's report, at note 7 above, denounced the obstacles put by Morocco to MINURSOs work. Francesco Bastagli, appointed UN Special Representative for Western Sahara in 2005, strongly criticised UN inaction on Western Sahara and resigned in protest in 2006. 10 This was the registration count or census figure on 30 December 1999. The Identification Commission announced the result on 15 January 2000 and the Secretary-General reported it to the Security Council on 17 February 2000. See UN doc. S/2000/131 (17 February 2000). From Moroccos point of view, the numbers indicated total defeat. Stephen Sunes and Jacob Mundy, Western Sahara: War, Nationalism, and Conflict Irresolution (Syracuse, NY: Syracuse University Press, 2010) at p. 215. 11 Framework Agreement on the Status of Western Sahara, Annex I of UN Secretary-General Report S/2001/613 of 20 June 2001. 12 The then UN Secretary-General Kofi Annan may have instructed his Personal Envoy to go no further than autonomy for Western Sahara within the Moroccan state. Former UN Undersecretary-General Marrack Goulding has said that Annan asked him to go to Houston to persuade James Baker III to accept an appointment as Special Representative and try to negotiate a deal based on enhanced autonomy for Western Sahara within the Kingdom of Morocco. Marrack

12

Polisario Front rejected Baker Plan I.16 Undaunted, James Baker moved to develop a second plan for selfdetermination, one that envisioned Sahrawi self-rule under the governance of a Western Sahara Authority for a period of five years, to be followed by a referendum on independence. Baker Plan II provided that Moroccan settlers (who by then outnumbered Sahrawis in the occupied part of the territory by at least two to one) would be allowed to vote. This, too, was contrary to norms of selfdetermination given that the relevant UN principles after Resolution 1541 (XV) are clear that those entitled to vote are the bearers of the right to self-determination; the indigenous people of a colonised territory.17 Here it should be recalled that in Timor-Lestes 1999 referendum Indonesian settlers were disqualified. Nevertheless, Baker Plan II was unanimously endorsed by the Security Council. The Polisario Front reluctantly (even surprisingly, according to many observers) accepted the plan. It is now understood that the Sahrawi leadership endorsed Baker Plan II confident that the outcome would be one where Moroccan
16

settlers would largely opt for independence, so escaping poverty and a dictatorial regime.18 Anticipating that it would lose the vote, Morocco rejected the plan.19 Moreover, it feared that democracy during the five years of transitional administration leading to the referendum could infect the kingdom.20 Any notion of a self-determination referendum in Western Sahara regardless of the population eligible to participate has been rejected by Morocco since 2002. Notwithstanding the stated commitment of Moroccos Hassan II to the 1990-91 UN settlement terms and the 1997 framework process, his successor Mohammed VI rejects a referendum, declaring Moroccos claimed sovereignty over its so-called Southern Provinces to be irrevocable.21 In June 2004 James Baker resigned in frustration over the situation. As alternative to a referendum, Mohammed VI introduced the idea of limited autonomy for Western Sahara. On 11 April 2007 Moroccos government transmitted to the new UN Secretary18

It is instructive to recall that, from the time James A Baker was appointed until his first plan was developed, the people of Timor-Leste proceeded through the self-determination process and were assured of having independence by May 2002. It is not known how persuasive this parallel case might have been in the consideration of the Sahrawi people and their diplomatic response in rejecting the Baker Plan I. 17 In the same context, consider a recent report of the New York City Bar Association which notes that the right to self-determination under international law pertains to the indigenous inhabitants of a Non-Self-Governing Territory in this case the Sahrawis who inhabited the territory and cannot be invoked by non-indigenous settlers. The Legal Issues Involved In The Western Sahara Dispute - The Principle of Self-Determination and the Legal Claims of Morocco, New York City Bar Association, Committee on The United Nations, June 2012, at p. 94.

Statement by Emhamed Khadad, member of the National Secretariat of the Polisario Front and coordinator for MINURSO, at a meeting on Western Sahara at the University of Utrecht, 25 March 2002. 19 I would assume it was because they were worried that they wouldnt win the vote. James Baker in an interview with the American radio program Wide Angle, 19 August 2004, available at: <www.pbs.org/wnet/wideangle/episodes/saharamarathon/interview-james-a-baker-iii/873/>. 20 For a discussion of the response to Baker Plan II, see Western Sahara: War, Nationalism, and Conflict Irresolution, above note 10 at pp. 234 ff. 21 In March 2006 during a visit to the territory Mohammed VI declared: "Morocco will not cede a single inch, nor a grain of sand of its dear Sahara". See the statement at <www.arso.org/01-e06-1314.htm>.

13

General Ban Ki-moon a proposal for the territorys autonomy, styled as the Moroccan initiative for negotiating an autonomy statute for the Sahara region and described as a basis for dialogue, negotiation and compromise.22 The Polisario Front had anticipated the initiative and so delivered to the Secretary-General a day earlier its Proposal For A Mutually Acceptable Political Solution Assuring The SelfDetermination of the People of Western Sahara.23 By month-end the Security Council responded with Resolution 1754, urging Morocco and the Polisario Front to enter into direct negotiations without preconditions and in good faith. Talks started that June in Manhasset, New York
22

See: <wSahara.blogspot.com/2007/04/moroccos-plan-fulltext.html>. Ambassador Frank Ruddy has described it as: the latest in a long line of illusions that Morocco has created over the years to distract world attention from the real issue, adding The Moroccan limited autonomy plan for Western Sahara might sound like a step forward, at least until one reads the not-so-fine print. Article 6 of the plan provides that Morocco will keep its powers in the royal domain, especially with regard to defense, external relations and the constitutional and religious prerogatives of his majesty the king. In other words, the Moroccans are offering autonomy, except in everything that counts. It gets even more disingenuous where the Moroccans say their plan will be submitted to a referendum, but fail to provide details. A referendum to be voted on by whom? By the Moroccan people? That would be absurd on the face of it. By the Saharawis themselves? If so, what happens if the Saharawis reject the plan? Would that mean Saharawi independence? The Moroccans are not likely to tolerate that result. Karin Arts and Pedro Pinto Leite, eds, International Law and the Question of Western Sahara (Oporto: IPJET, 2007) at p. 12. 23 The Proposal is available at: <www.arso.org/PropositionFP100407.htm#en>. The Polisario Front restated its acceptance of Baker Plan II, and extended the prospect of naturalising or granting citizenship to Moroccan settlers at independence and waived possible future reparations claims between the two states. The 2007 Proposal remains the Polisario Fronts formal position, including a stated commitment to holding a genuine referendum.

and numerous rounds have been held since in various locations. While the conduct of negotiations, now under the auspices of the current Personal Envoy of the Secretary-General, the former US diplomat Christopher Ross, has meant that Morocco must contend with the Polisario Front as an equal, there has been no tangible progress since April 2007. Side talks in November 2011 on the subject of natural resources in Western Sahara were fruitless and efforts to have the UN assume a human rights monitoring role as part of MINURSO have failed.24 From the standpoint of the involvement of the UN and the organised international community the impasse following James Bakers resignation has continued and there has been no momentum toward either of the parties 2007 proposals. While this status quo is widely regarded as unacceptable, the community of states defers entirely to the UNs conduct of the matter, thus entrenching the dynamic. A preliminary conclusion Two decades on, it is evident that the process for an act of Sahrawi selfdetermination has failed. The impasse is routinely explained away as the inability of the parties themselves to change their positions in negotiations, the Polisario Front for its part viewed as intransigent because of its insistence on a credible
24

See e.g. the 2012 annual report of the Secretary-General to the Security Council, Report of the Secretary-General on the situation concerning Western Sahara (5 April 2012), UN doc. S/20121/197, at paragraphs 72 ff. See also Preliminary Observations: Robert F. Kennedy International Delegation Visit to Morocco Occupied Western Sahara and the Refugee Camps in Algeria (3 September 2012) available at: <http://rfkcenter.org/images/attachments/article/17 03/Final091012.pdf>. On 28 November 2012 Christopher Ross announced he would not reconvene direct informal talks between the two parties for the time being.

14

referendum process and its reliance on international law. What the commentators have been reluctant to emphasise is that the Sahrawi position is entirely consistent with the law. The ICJs 2010 Kosovo advisory opinion underscores the point. And so while it cannot quite be said that the Sahrawi people were deceived when they agreed to the 198891 settlement and referendum arrangements, the basis of such measures has obviously been denied to them. One of the avowedly more important norms of international order and security in the modern age, colonial self-determination, goes unremedied. So, too, does any challenge to uphold another important norm, that of territorial integrity, as well as international humanitarian law in an occupation notorious for human rights abuses, the in-migration of settlers and the taking of natural resources.25 There are two further unhappy results from the present impasse, namely the diminished capacity and reputation of the African Union to be a respected interlocutor to the question of Western Sahara and the demonstrable inability of the Security Council to resolve the conflict, whether within the norms of international law or not. The latter issue is more serious when we recall that the UN, led by the Security Council, was successful in a shorter period of time with self-determination in Namibia and TimorLeste. For the Sahrawi people, the construct and
25

requirement of the organised international community for a referendum has become deferred ad kalendas graecas. Is a referendum mandatory? If the delay in resolving the question of Western Sahara traces itself to a stalled dynamic in arranging a referendum for the Sahrawi people (or perhaps now the entire population as it has come to be in occupied Western Sahara) then the requirement for such a process must be critically questioned. In its 1975 Western Sahara advisory opinion the International Court of Justice confirmed that the application of the right of selfdetermination requires a free and genuine expression of the will of the peoples concerned26 acknowledging, however, that the need to have regard for the will of the people concerned did not have to come about only by referendum.27 A referendum if necessary, but not necessarily a referendum. And so the wide-ranging and accepted practice in the community of states for the assurance of legitimate (i.e. consultative, credible and electorally based) instances of decolonisation must be recalled. The vast majority of cases during the busy years of decolonisation reveal the acceptability of peoples
26

The value of natural resources exported from occupied Western Sahara in 2012, primarily phosphate mineral rock and fish, will exceed $500 million. See generally the website of Western Sahara Resource Watch at: <www.wsrw.org>. The cost to Morocco of its occupation has not received critical attention. We consider it to be at least $1.5 billion annually in identifiable military expenditures.

Western Sahara Advisory Opinion, Advisory Opinion of 16 October 1975, ICJ Rep. 1975, para. 55. 27 The validity of the principle of selfdetermination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a "people" entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances, ibid. para. 59.

15

exercising the right to self-determination and accession to independence without referenda. Among them can be counted all former Portuguese colonies with the exception of Timor-Leste.28 Moreover, the risk of conducting a less than fully credible (or democratic) referendum in Western Sahara should be considered. A sham elective process, aside from possibly introducing an unforeseen element into the conflict over the territory, would be a further precedent that damages international law, as the case of a fraudulent consultative exercise in West Papua, the 1969 Act of Free Choice, has demonstrated. In any event, a referendum as it would be conducted in Western Sahara is now not one in which Moroccan nationals settled into the territory would be disqualified and so would be a referendum damaging to the principle of territorial integrity and the prohibition by international humanitarian and criminal law against population resettlement into an occupied territory. On the other side of the ledger, the Sahrawis credibly exercised the right of self-determination when first constituting themselves as a state. Notwithstanding the historical and legal parallels between the two cases of Timor-Leste and Western Sahara, there is an important difference to be noted. For the Timorese a referendum
28

was arguably required because, while there had been a declaration of independence and for a brief time Timor met the statehood conditions enumerated in the Montevideo Convention and customary international law (a permanent population, a defined territory, a government and the capacity to enter into relations with the other states), on invasion by Indonesia governance ceased and territorial control was lost. 29 In addition, the nascent Democratic Republic of East Timor achieved only limited recognition (from 11 states) and the regional organisation, ASEAN, sided with Indonesia. Moreover, the exiled Timorese leadership did not pursue a statehood construct, holding to a singular position as a non-self-governing people. In this, Portugal maintained its position as the de jure administering colonial power as demonstrated by its challenge in the ICJ to the 1989 Australia-Indonesia Timor Gap Treaty for seabed petroleum and, later, as a party to the May 1999 agreement with Indonesia for a referendum in the territory.30 Finally, a UN conducted referendum was a useful precursor to the accepted need for the UN to administer the territory and build institutions for statehood over a three-year period until independence in May 2002.31 The utility of such a popular, and widely supported process, can be seen at present in Kosovo and was arguably critical in the culmination of South Sudans long running secession effort.

Few self-determination referenda were held in Africa. The referendum in French Togoland (1956) was not a referendum of self-determination per se, as it did not include the option of independence and so was rejected by the UN General Assembly. Those in Namibia (1989) and South Sudan (2011) were accepted and led to the independence of both countries. The referendum in Eritrea served to confirm a de facto independence Eritrea had already won the war of liberation against Ethiopia and the referendum was a means to ensure recognition by the OAU (headquartered in Addis Ababa) and the UN.

29

Article 1 of the Montevideo Convention on the Rights and Duties of States (26 December 1933), 165 LNTS 19. 30 Despite not having recognised the Democratic Republic of East Timor at the time of its unilateral declaration of independence in November 1975, Portugal severed diplomatic relations with Indonesia after the invasion. 31 More accurately perhaps the restoral of independence.

16

For the Sahrawi people, the circumstances are manifestly different. No serious assertion can be made that the SADR is not a state. The criteria for statehood are well established: (i) a people culturally and linguistically different from those of Morocco;32 (ii) a defined territory within colonially prescribed and universally accepted boundaries, one-fifth of which is under its control;33 (iii) a government with exclusive jurisdiction over a substantial part of the Sahrawi population that is in the liberated area of Western Sahara and the refugee camps at Tindouf; and (iv) the capacity to enter into relations with other states, the Sahrawi Arab Democratic Republic having been recognised by more than 80 states (and conducting diplomatic relations with 40 of them, with embassies in 18 capitals). In addition, the SADR was admitted in 1982 to the regional organisation, the OAU (something that resulted in Morocco quitting the organisation) and is a founding member of OAUs successor, the African Union.34 While it is true that the larger and economically important part of the territory is ruled by Morocco, illegal occupation cannot of itself terminate statehood. 35 Indeed, as Kuwaits invasion
32

and occupation by Iraq in 1990 has shown, there is an obligation to expressly maintain territorial integrity in cases of annexation. An additional factor is the absence of a colonial administering state. International law together with widespread state practice is clear that a colonising state continues in its obligation to ensure the self-determination of a subject non-self-governing people, however much that state may be absent. Spains abandonment of Western Sahara might properly be construed not so much as recognition of the Saharawi Republic but of the fact that all other options for self-determination have been exhausted.36 The problem with the existence of the Sahrawi state is two-fold: the requirement for recognition by all states as a political act whatever the material-factual existence of the Saharawi Republic and the deference to the UN in resolving the
affecting the right to self-determination of the people whose territory has been occupied constitutes an absolute violation of the right to selfdetermination, above note 16 at para. 45. 36 In a recent article Hans Corell, the former UN Under-Secretary-General for Legal Affairs, described the Madrid Accords in these terms: On 14 November 1975, a Declaration of Principles on Western Sahara was concluded in Madrid between Spain, Morocco and Mauritania (the Madrid Agreement), whereby the powers and responsibilities of Spain, as the administering Power of the Territory, were transferred to a temporary tripartite administration. 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; Spain alone could not transfer that authority unilaterally. The transfer of the administration of the territory to Morocco and Mauritania in 1975 did not affect the international status of Western Sahara as a Non-Self-Governing Territory. 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, thus leaving it in fact under the administration of both Morocco and Mauritania in their respective controlled areas. Western Sahara status and resources, New Routes 4/2010, pp. 10-13.

The Sahrawi speak Hassaniya, an Arab dialect different from that in Morocco. 33 Since Morocco completed the berm in the late 1980s, the Sahrawi have undisputed control inland or east of it, a matter confirmed by the operation of the 1990-91 UN ceasefire and referendum arrangements. 34 In July 2002 Mohamed Abdelaziz, President of the SADR, was elected vice-president of the African Union at its first summit. Morocco remains the only African state not a member of the regional organisation. 35 Ian Brownlie, Principles of Public International Law, 3rd ed (Oxford: Clarendon Press, 1979) p. 83. In a similar way, Hector Gros Espiell notes that the foreign occupation of a territory - an act condemned by modern international law and incapable of producing valid legal effects or of

17

question of Western Sahara exclusively within the construct of self-determination and not as with Kosovo and South Sudan at present (and in a somewhat different context, Palestine) a new state emergent into the organised international community. The problem with accepting an existing, Sahrawi state may be the result of confusion over what has come to be a singular standard in the international community, most recently seen in the cases of secession, that states coming into being must undergo the same legitimacy requirements including a reasonably credible and democratic choice for independence and some measure of consent by the former parent (or occupying) state.37 However, the better reason for the lack of acceptance of the Sahrawi state is the reluctance of the organised international community to disturb the status quo of a claim that is rigidly maintained by Morocco. Whatever the overarching norms of international law, deferring the matter to the United Nations has contributed to the impasse. A further conclusion By now it should be clear that a referendum for self-determination arranged for the Sahrawi people is not a mandatory requirement of international law, state practice or UN norms. If the right of self-determination is accepted and it is almost universally by states in the case of Western Sahara it can be accomplished by other means. The overwhelming precedent is that of moving directly to independence and therefore
37

statehood within the colonial (non-selfgoverning) context. It must be recalled that the Sahrawi people have been resolute about such a choice. No serious argument, much less any credible evidence, can be asserted that the Sahrawi people favour anything less than outright statehood and have, at least with that part of their population self-governed in exile and so able to declare a consensus, said so continuously since February 27, 1976. The apparent problem of acceptance of Sahrawi statehood in other words, recognition of the SADR is not so much a problem of approving the existence of the state as it is a refusal to contemplate (and address the end of) an illegal occupation together with the possible political and social upheaval to result in Morocco. Moreover, a referendum held out as the only mode or route to self-determination, whether in a non-self-governing or secessionary context, establishes a norm that may be unworkable in future cases where an occupying states cooperation and consent is considered necessary to the exercise. Assessing the insistence on a referendum We might ask why, when it comes to Western Sahara and the Sahrawi people, a referendum is not mandatory there been so much insistence on it. After all, there is not much doubt arguably much less than in the previous UN referenda for Namibia and Timor-Leste that independence would be broadly chosen. However, the Sahrawi people themselves would benefit from the perceptions resulting from a properly conducted referendum, not least of which would be the lasting basis for universal recognition by states and the further legitimisation of the Sahrawi statehood project, including by participation of the whole Sahrawi populace. As with Timor-Leste, the

Recall Hector Gros Espiells reasoning: [T]he right of peoples to self-determination has lasting force, [and] does not lapse upon first having been exercised to secure political selfdetermination ..., above note 16.

18

consequence of a referendum would be to set aside obstacles in the SADRs new relationship with more powerful states, notably the United States and France, which obstacles exist because of their support to Morocco. Within the UN the question of Western Sahara has become almost exclusively the preserve of the Security Council. The role of the General Assembly, reaching a high water mark in the years of pursuing an end to occupation and self-determination in Namibia, going so far as to create a council to govern the territory in absentia, has progressively diminished. The annual resolutions of the General Assembly, taken up from the Special Political and Decolonisation Committee, while reiterating the right to self-determination, are not pursued by the Security Council and serve to reiterate a broad acceptance of Morocco as a legitimate party through statements that settlement of the question of Western Sahara must be just, lasting and mutually acceptable to the two parties concerned. There is also the phenomenon of the status quo of self-determination, most starkly demonstrated by Western Saharas continuing inclusion on the UNs list of Non-Self-Governing Territories, conferring a degree of protection not so much to the Sahrawi people as to at least one right they enjoy.38 An over-assertion of

statehood seemingly puts that at risk, and it is for this reason that the SADR has not sought a fuller presence in UN institutions, for example by observer status in the General Assembly or participation in the UN Food & Agriculture Organisation which conducts extensive fisheries research in Saharan coastal waters.39 The situation is therefore one of schizophrenia. The Sahrawis conduct their affairs as a state, at least for that part of the population in exile that can do so, while much of the community of states is not willing to accept the formal existence of that state.40 A third conclusion A consultative exercise as important as the election by a colonised people of their political-legal status is a desirable objective. When it comes to the Sahrawi people, the insistence on a referendum is a pragmatic choice. But that insistence has allowed the underlying right of the people of Western Sahara, namely the actual achievement of their desired status, to be frustrated. It would be different if a referendum were imposed or able to be credibly organised by the Sahrawi people both inside and outside the occupied part of Western Sahara. Neither is likely. And so the insistence on process not only obscures the desired right, it obstructs it being realised.

38

A protection, however, that cannot be totally taken for granted, considering for example the case of West Papua: Although the so-called Act of Free Choice was a sham something later admitted by the then UN Under Secretary-General Chakravarthy Narasimhan and confirmed by the recent report of the Dutch academic Pieter Drooglever West Papua was removed from the UNs list of non-self-governing territories and has since been considered part of the Republic of Indonesia. See Pieter Drooglever, An Act of Free Choice: Decolonisation and the Right to Self-

Determination in West Papua (The Hague: Institute of Netherlands History, 2009). 39 See the website of the UNFAO/UNEP Canary Current Large Marine Ecosystem Project at: <http://www.canarycurrent.org/> 40 The status of Sahrawi diplomats makes the point: Ubbi Bachir and Ali Mahamud Embarek, each formerly Polisario Front representatives in The Netherlands are now SADR ambassadors in Nigeria and Panama, respectively.

19

How, then, can the present circumstances be addressed? What innovative approaches can be recommended, especially by those states and organisations concerned and who, through the UN, exercise a power dynamic to determine the fate of the Sahrawi people and their territory. To that essential question we turn. An alternative to the referendum Apart from the rights of the Sahrawi people, together with the obligations owed to them as a population designated as non-self-governing, the UN Charter contains several prescriptions useful to resolve their status. Such requirements, it must be added, do not encompass the details of self-determination, a task in the after the Charter left to the General Assembly and found in Resolutions 1514 and 1541, above. In the event of territorial annexation, and there is no clearer case at present than that of Morocco in Western Sahara, the Security Council may invoke the measures at Chapter VI and VII of the Charter. Notwithstanding the impasse over Western Sahara and the nature of its initial occupation and annexation there has been no serious consideration of applying the compulsory provisions of the Charter. This is, of course, a reflection of the prevailing status quo. What obviously engages application of the UN Charter is the matter of Western Saharas territorial integrity. The right to self-determination of the Sahrawi people having been violated by invasion, such violation, the reasoning goes, can only be brought to an end by withdrawal of Moroccan forces (and government control) from the territory. 41 This was the
41

initial direction of the Security Council when confronted by the annexation of the territory, directing in resolution 380 on 6 November 1975 that Morocco immediately withdraw from the Territory of Western Sahara 42 It is less a question of the persuasiveness of this demand than it is to realise it decades later. How can the Security Council be made to act? To begin with, a well-planned campaign for recognition of the Sahrawi Republic by UN member states seems timely. A useful reference point for the merits of recognition is the 2004 letter from the then President of South Africa, Thabo Mbeki, to Mohammed VI, explaining why South Africa had decided to recognise the Sahrawi Republic.43 At the same time we recognise that as a matter of contemporary international law recognition is not strictly necessary for the existence of statehood, having only a declaratory value. But international politics is another matter and here it is clear recognition is profoundly important. So it is worth repeating that the SADR has been recognised by over 80 countries and

See also Susan Marks, Kuwait and East Timor: a brief study in contrast, comparing the

invasion of Kuwait by Iraq with the Indonesian invasion of East Timor, International Law and the Question of East Timor, above note 22 at pp. 174179. For the reasons outlined above her conclusions apply a fortiori to the Moroccan invasion of Western Sahara. 42 At paragraph 2 of the resolution. Article 25 of the UN Charter obligates members of the United Nations to carry out decisions of the Security Council. 43 For us not to recognise SADR in this situation is to become an accessory to the denial of the people of Western Sahara of their right to selfdetermination. This would constitute a grave and unacceptable betrayal of our own struggle, of the solidarity Morocco extended to us, and our commitment to respect the Charter of the United Nations and the constitutive act of the African Union. Letter of August 1, 2004, untitled, at: <http://arso.org/MBK.htm>.

20

the African Union.44 In recent years, in addition to being recognised by some states ex novo (most recently South Sudan) and having established diplomatic relations with states some time after recognition (most recently Guyana), the SADR has managed to reverse the position of eight states that had suspended or withdrawn recognition: Nicaragua, El Salvador, Ecuador, Paraguay, Chad, Uganda, Sierra Leone and Vanuatu. There are also indications that states in the Global North are considering recognition of the SADR, for example Sweden where the Parliamentary Committee on Foreign Affairs approved a resolution in November 2012 calling on that countrys government to extend recognition.45 It is in this endeavor a campaign for universal recognition of the Sahrawi state that solidarity organisations will play an important role. That must necessarily engage coordinated action among the many worldwide groups which suggests the creation of an effective coordinating agency. Such an organisation does not yet
44

exist and the need for it is ever more apparent.46 By way of example, in the matter of the protection of natural resources in Western Sahara, including against their export from the territory, the Brussels based non-governmental organisation Western Sahara Resource Watch pursues case-specific and general campaign work coordinated across several countries and languages.47 External NGO monitoring and action for human rights in occupied Western Sahara is equally sophisticated, with the Geneva based Bureau International des Droits pour le Respect humains au Sahara Occidental (BIRDHSO) created in 2002.48 A newly organised NGO, Western Sahara Human Rights Watch (WSHRW), pursues a broader mission to promote and support campaigns for the defense of human rights in the Western Sahara, civil and political, as well as economic or
46

Moroccos isolation became even more pronounced when South Sudan achieved independence, acceded to the African Union and immediately established diplomatic relations with the SADR. There has been a campaign in recent years by Morocco to secure the withdrawal of recognition of the SADR by states in the Global South, with mixed success. The commentators agree that withdrawal of recognition does not signify or hasten the end to a states formal existence. See Article 6 of the Montevideo Convention, above note 29. Such withdrawals have occasionally been absurd, for example in Guinea-Bissaus first recognising the SADR in 1976, withdrawing recognition in 1997, again extending recognition in 2009 and withdrawing it in 2010. 45 See Committee on Foreign Affairs at the Swedish parliament calls on the government to recognise SADR (15 November 2012) at the Sahara Press Service website: <www.spsrasd.info/en/content/committee-foreignaffairs-swedish-parliament-calls-governmentrecognise-sadr>.

Professor Stephen Zunes at University of San Francisco, comparing solidarity movements in the causes of East Timor and Western Sahara, concludes this is a factor working against Sahrawi independence despite their impressive efforts at building well-functioning democratic institutions in the self-governed refugee camps where the majority of their people live, the Sahrawis have never had the degree of international grassroots solidarity that the East Timorese were able to develop, which eventually eroded support of the Indonesian occupation by Western powers. See: <www.spectresine.org/resist/wsahara.htm>. Though an international solidarity movement does exist for Western Sahara, primarily in Europe, it pales in comparison with the movement in support of East Timor, which grew dramatically in the 1990s, and helped encourage greater media coverage on the human rights situation. Presentation to the conference on International Law and the Question of Western Sahara, Institute of Social Studies, The Hague, 27 and 28 October, 2006. 47 See WSRWs website at: <www.wsrw.org>. WSRW is thought to be unique among NGOs and solidarity groups concerned with Western Sahara by employing a staff lawyer. 48 See the organisations website at: <www.birdhso.org>.

21

cultural.49 The space for coordinate action remains open for the vital work of a single respected and unifying organisation. It would necessarily need to have regard for, if not work somewhat in conjunction with, Sahrawi public diplomacy. It is also clear that the Saharawi Republic should continue to comport itself as a state, especially in its informal relationships with states of the Global North and in preparation for the restoral of full independence. Kosovo offers a useful example of the interim steps to be taken, including accession to international organisations and receiving assistance in certain areas, such as rule of law capacity building. When it comes to territorial integrity, it should be recalled that the SADR routinely acts in its self-interest, for example through the enactment of ocean jurisdiction legislation in 2009.50 None of this is to suggest that the Sahrawi people and their leadership both in exile at Tindouf and within occupied Western Sahara should maintain anything less than an outspoken demand for the
49

exercise of self-determination. Such an option must always necessarily remain available and in theory if only because it is acceptable under international law the resumption of armed hostilities.51 However, the time has come for the most tenable and at least equally acceptable option to be advanced, and that is greater recognition of the Saharawi Republic. What is to result is no more an uncertain or damaging prospect for international relations, political stability in the states concerned, and the maintenance of the international legal order than has resulted from the present circumstances. A final conclusion Any campaign for wider recognition of the Saharawi Arab Democratic Republic must have as a primary goal approval by a majority of member states in the UN General Assembly. Subject to the specific requirements of the UN Charter for the SADRs membership in the UN, the result would be two-fold: the extension of formal relationships by previously uninterested states together with a putting into perspective for possible action by the UN and the organised international community the problem of the illegal occupation of Western Sahara and continuing aggression that is revealed in the various dimensions of annexation,
51

See WSRWs website at: <www.wsrw.org>. WSRW is thought to be unique among NGOs and solidarity groups concerned with Western Sahara by employing a staff lawyer. See the organisations website at: <www.wshrw.org>.
50

Law no. 03/2009 of 21 January 2009 Establishing the Maritime Zones of the Saharawi Arab Democratic Republic. The legislation resulted in the European Parliament reviewing the EUMorocco 2007 Fisheries Partnership Agreement, which had allowed European fishing in the coastal waters of Western Sahara, leading to Parliaments rejection of the treaty and the end of such fishing in December 2011. The SADR government has also issued petroleum exploration licenses for foreign companies in the Atlantic coastal seabed, and routinely protests the taking of natural resources from the territory to The European Commission and foreign natural resources companies.

The use of force against colonial and foreign occupation is legitimate and permissible as a matter of international law. For example, in its resolution of 3 December 1982 (Importance of the universal realisation of the right of peoples to selfdetermination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights) the General Assembly reaffirmed the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all available means, including armed struggle. See UN doc. A/RES/37/43.

22

including human rights abuses, settler inmigration and the pillage of natural resources. The General Assembly has previously acted in a leading role for decolonisation and the creation of states, its long-running work for Namibia being the classic exemplar. While the UN Charter and precedent confer sufficient authority, it should be recalled that the General Assemblys 1950 Uniting for Peace resolution can also be invoked, Western Sahara being an instance where the Security Council, because of a lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there *is a+ breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures to maintain or restore international peace and security.52 The long-running and profoundly unjust case of Western Sahara is an ideal example of the intended use of the resolution. Even the most casual, objective observer must conclude that there is little prospect of the Sahrawi people enjoying a selfdetermination referendum of any credibility or acceptability in the years to come. Only a determinedly new approach
52

by the UN Security Council or momentous political change in Morocco would seem to change the present impasse. Neither seems likely. With an organised international community more concerned with the revolutions of the Arab Spring, there is a reluctance to act when it comes to Western Sahara. The status quo stands to be further entrenched. And so it is time to recall that the Sahrawi people are the sovereigns of their territory, and the fact of their state is well established. From such a place there should be little distance to travel to a completed and universally accepted statehood, and that is by the path of recognition. The Sahrawi people, their international supporters and the member states of the General Assembly each have a role in the achievement of such a goal.

UN General Assembly Resolution 377-A (3 November 1950) at: <http://untreaty.un.org/cod/avl/ha/ufp/ufp.html>. For a discussion of the possible application of the resolution see Jean Krasno and Mitushi Das, The Uniting for Peace Resolution and Other Ways of Circumventing the Authority of the Security Council in Bruce Cronin and Ian Hurd, eds, The UN Security Council and the Politics of International Authority (London: Routledge, 2008) at pp. 173-195.

23

Antecedentes y organizacin de la Escuela de Formacion Audiovisual del Sahara Occidental

Por Roberto Lzaro, Director Acadmico EFA Sahara Occidental. Hace seis aos fui invitado a los campamentos de refugiados de Tinduf en el sur de Argelia donde muchos miles de personas, en su mayora mujeres y nios, sobreviven en la adversidad de desierto. Mi viaje era por unos pocos das para asistir al festival de cine que tiene lugar en la wilaya de Dajla; y mi misin, entregar a la Ministra de Cultura de la RASD -en acto pblico- un desarrollo de contenidos que formaran el pensum de una posible futura escuela de formacin audiovisual. Todo naci con el proyecto llamado Cine por el pueblo Saharaui que surge para dar una parcial solucin a las necesidades detectadas, en lo referente a ocio, actividades culturales y de formacin audiovisual, entre la poblacin de refugiados saharauis de los campamentos de Tinduf. La poblacin joven es la que ms est sufriendo esta situacin, pues si bien algunos de ellos han terminado sus carreras universitarias, hay muchos otros que no han podido hacer ms que los estudios primarios y en apenas ningn caso encuentran un empleo en los campamentos. Su situacin es muy delicada y difcil pues adems encuentran pocas oportunidades de ocio y entretenimiento en los campamentos. Para los jvenes que han estudiado en
24

otros pases, y los ms pequeos que viajan a Espaa en el programa vacaciones en paz, era comn disfrutar de una sala de cine o de una obra de teatro. Tambien, los refugiados que tienen edad y que vivieron en el Sahara Espaol en ciudades disfrutaran de sus cafeteras, cines, y teatros. Las condiciones les obligaron a preocuparse de su supervivencia y sus necesidades bsicas, la cultura ya se entiende como una de ellas y por ello proyectos como este, el del festival y sus talleres de formacin, se hacen cada vez ms necesarios en poblaciones desfavorecidas. Adems, tras ms de treinta y cinco aos de destierro es muy difcil llamar la atencin de los medios de comunicacin hacia este conflicto. Hay que idear nuevas formas de atraccin para que esta injusta situacin no caiga en el olvido. La celebracin de un festival de cine con la presencia de famosos actores y directores hace muy atractiva la noticia y por consiguiente se difunde esta problemtica. Pues bien, tras el xito de las actividades de tipo didctico desarrolladas en torno al Festival Internacional de Cine, fundamentalmente talleres de formacin, los organizadores observaron una fuerte demanda educativa entre la poblacin joven saharaui, demanda que propone a su vez el deseo de establecer de manera continuada un Centro de Formacin Audiovisual donde chicos y chicas tengan la posibilidad de aprender los conocimientos bsicos de una profesin que les permita crear sus propias historias para que el mundo conozca su situacin y su lucha; adems de poder preservar y difundir mediante la realizacin audiovisual la idiosincrasia y el acervo

cultural del pueblo saharaui, y de recuperar, mantener, custodiar y difundir el amplio archivo flmico de que dispone la RASD. Con ese fin, en 2009, en el marco del festival, con la programacin que presentaba ante la ministra y las autoridades locales, se cavaban los cimientos acadmicos de la que dos aos despus se conocera como Escuela de Formacin Audiovisual del Sahara Occidental. Dise la metodologa adaptando los contenidos a la realidad del pueblo saharaui que vive en los campamentos de refugiados de Tinduf. Los alumnos que procedan de otros campamentos deberan alojarse en rgimen de internado. Con una duracin de 3 trimestres (1.000 horas), la diplomatura de la Escuela de Cine y TV del Sahara consiste pues en una serie de 10 mdulos de tres semanas de duracin cada uno (100 horas). Debido a las peculiaridades de los campamentos y a su lejana con Espaa, no es posible configurar un criterio de mdulos transversales como sera lo ideal, donde compaginen ms de una materia y profesor al mismo tiempo; por lo se opta por disponerlos de manera continua. stos se corresponden, pues, con cada una de las disciplinas indispensables para la formacin del alumno en el campo audiovisual. Con esta formacin los alumnos adquirirn conocimientos suficientes para poder desarrollar su iniciativa audiovisual de una forma rpida pero slida. Poco a poco se dot al centro de tecnologa suficiente para el desarrollo de la actividad docente as como para la gestin de las prcticas que propone este
25

diseo curricular, muchas de ellas fruto de donaciones propias o de empresas conocidas y amigos que en pleno cambio de la televisin analgica a la digital, no tenan inconveniente en cederme para este fin sus viejos equipos. Adems, como no, de la escuela donde imparto clases en Madrid que casualmente se encontraba en ese proceso de renovacin de equipamiento tcnico. Pero no solamente eso, encontramos muebles, camas, enseres de cocina, material de oficina. Para el diseo de esta programacin tuve en cuenta la realidad del profesorado que viajara desde el estado espaol para impartir las clases. Estos sern profesionales de la enseanza que imparten de forma regular sus clases en centros espaoles de formacin profesional, o profesionales del cine y la televisin en activo. Por medio de un acuerdos con escuelas de cine y televisin de otros pases, los alumnos tendran la posibilidad de optar a becas para estudiar una especialidad. Por ejemplo, segn acuerdo ya existente, aquellos alumnos que hayan aprobado los diez talleres optarn a ser seleccionados para conseguir una beca de estudios en la escuela de San Antonio de los Baos (Cuba), donde ha iniciado los estudios este curso 2012-2013 uno de nuestros alumnos que la primera promocin. Adems siempre ha sido nuestro deseo que la Escuela de Cine y TV del Sahara estuviera coordinada con la televisin nacional Saharaui en la que los alumnos podran realizar sus prcticas y pasar a ser parte del equipo profesional de la misma ya que al finalizar el curso el alumno que promocione obtendr una titulacin de Tcnico Superior en Imagen y Sonido: Diplomado en Vido y Televisin.

En fin, casi tres aos despus, el proyecto era una realidad. El edificio se construyo con ayuda de la Agencia Espaola de Cooperacin Internacional AECID y una vez enviado el equipamiento, en noviembre de 2011 se inici con un equipo directivo formado por un director local que se encuentra de manera permanente en la escuela y un director acadmico que desde Espaa hace las funciones fundamentalmente de Jefatura de Estudios y cuya misin es disear la programacin de la escuela, seleccionar profesores, coordinar las tareas docentes, ocuparse de la logstica propia de bsqueda y mantenimiento instrumentos y equitacin, as como de un Gestor de Produccin especialista en Cooperacin que hace de enlace con la Coordinadora Espaola de quien depende el proyecto (CEAS); a quien corresponde buscar los patrocinios que doten de equipo a la misma. Todo esto siempre en estrecho contacto con el ministerio de cultura de la RASD. El alumnado del primer curso fue seleccionado mediante entrevistas previas realizadas en los distintos campamentos destacando un total de diez y ocho candidatos de ambos sexos con edades comprendidas entre los 18 y los 21 aos, que han sido el alumnado de la primera promocin de la escuela para el curso 2011-2012. Todos los aspirantes mostraron antes su deseo voluntario de aprendizaje en esta rea del audiovisual. De hecho algunos de ellos haban colaborado y participado en los distintos talleres que esta asociacin realiz en el marco del festival de cine del Sahara durante ediciones pasadas. El profesorado ha estado compuesto por profesionales del mbito audiovisual en activo con mostrada capacitacin docente que impartan de manera regular sus
26

clases en centros de enseanza vinculados a la Formacin Profesional audiovisual: Ciclos Formativos de Grado Superior, FP y Escuelas de Cine/TV. En este primer curso las nacionalidades han sido variadas, espaoles, venezolanos, puertorriqueos, cubanos; aunque, en cuanto a profesorado se refiere, el ideal de este proyecto reivindica a medio plazo la incorporacin como profesores titulares a aquellos exalumnos que han continuado y ampliado sus estudios mediante el procedimiento de becas indicado ms adelante y/o aquellos que se mantengan como profesionales del sector en cualquiera de los campos que esta profesin ofrece. De esta manera los profesores espaoles pasaran a se profesores de apoyo en el caso de que hiciera falta su participacin al menos en un periodo de lgica transicin: hasta que no sea necesaria su presencia. En mi presentacin al Ministerio de Cultura de la RASD en 2009 de los contenidos del curso, opt por una estructura en 10 mdulos de aproximadamente 100 horas cada uno como he dicho antes. Los siete primeros se han diseado de forma diacrnica, es decir, siguen las pautas temporales del proceso de creacin de la obra audiovisual desde la preproduccin hasta la fase de exhibicin y comercializacin. Consider adems fundamental un mdulo de realizacin multicmara (mdulo 8) para formarles en el mbito profesional ya que exista la posibilidad como he dicho- de formar tcnicos para la RASDTV, siendo el diseo de todos estos mdulos terico/prctico. Como colofn al curso plante dos mdulos (9 y 10) donde se pretende pongan en prctica los conocimientos adquiridos. Se trata de que debidamente tutorados, los alumnos se enfrenten a la realizacin de una obra audiovisual concreta y predeterminada: la

preparacin, el rodaje y la postproduccin de un mediometraje de ficcin o documental: 1) la produccin audiovisual 2) el guin audiovisual 3) la direccin: narrativa audiovisual 4) la direccin de fotografa: la iluminacin y la cmara 5) el sonido en rodaje 6) la direccin de actores 7) el montaje y la postproduccin de video y audio, masterizado y autora de dvd 8) la realizacin de televisin (multicmara) 9) trabajo de fin de curso: preproduccin de un mediometraje: escritura de guin, desglose de presupuesto, desglose de necesidades tcnicas y artsticas, plan de financiacin, plan de rodaje, confeccin de contratos, grabacin, montaje, sonorizacin, masterizado-autora de DVD y diseo de distribucin, comercializacin, festivales etc. A lo largo del curso prximo, como actividad complementaria, sera ideal impartir un mdulo trasversal dedicado a la historia y evolucin tcnica del cine, donde se fomentara el anlisis crtico de la obra tras el visionado de pelculas de largo y corto metraje, ya que la metodologa requiere de la participacin y debate con los alumnos. Se hara especial mencin a la esttica de la realizacin documental. Este mdulo se planteara fuera del horario lectivo como actividad extraescolar. Los criterios de promocin y continuidad que hablan de la aptitud del alumnado y la posibilidad de recibir un ttulo acadmico, se establecen porcentualmente a partir de la cuantificacin de las capacidades del alumno mediante un proceso de

evaluacin continua donde se valoran los siguientes criterios: asistencia, aplicacin y aprovechamiento; integracin del alumno en la escuela y disposicin para el trabajo en equipo; participacin del alumno en las tareas encomendadas; procedimiento objetivo de calificacin mediante prueba escrita de conocimientos al final de cada mdulo; resultado de los supuestos prcticos y grado de participacin en el caso de trabajos conjuntos; capacidad procedimental y disposicin para el trabajo manual; cumplimiento de los protocolos de mantenimiento, uso, limpieza de los equipos e instalaciones del centro; y tambien respeto a las normas de convivencia en el rgimen de internado. Hoy la escuela es ya una realidad donde diez y ocho chicos y chicas saharauis han aprendido aquellas mnimas tareas fundamentales para hacer frente a la escritura y realizacin de un cortometraje de ficcin. Esto, para ellos es sin duda muy importante y les abre la puerta para expresar con imgenes no solo su problemtica diaria y su expresin constante de ansia de libertad, sino adems su ms ntima y noble expresin artstica de sensibilidad y creatividad. Ayudemos a que estos jvenes formen la nueva generacin de cineastas saharauis y a que sus historias den la vuelta al mundo. Ms informacin: www.escueladecinedelsahara.org

27

Portrait of a former fighter

JC Tordai

28

Portrait of a former fighter

This photograph was taken in 2002 in the bidonville of Dir Yeddak in Laayoune. The collection of corrugated iron shacks, principally housing Sahrawis but with a minority of Moroccans there too, was demolished several years later. The subject of the photograph, seen here caring for his daughter, was rehoused on the fringes of the city. He died in late 2010 or early 2011. He was a Polisario fighter from the early days of the conflict. By his own account, he was trained by Libyan troops in the short period of Libyan military support for Polisario. He went on to fight in numerous actions against the Moroccan army. He disagreed with the 1991 ceasefire, believing that Polisario forces had mastered the Moroccan berm and its defences and should push on to make military gains. In an interview, he said that, ironically, it was this analysis and his conviction that he had nothing to offer but his military skills that persuaded him to hand himself over to Morocco in return for resettlement in the Occupied Territories. But while Morocco trumpeted the return of relatively small numbers of Sahrawis from the camps, saying it was a recognition of Rabats claim to sovereignty over Western Sahara, this former fighter said he had not renounced his support for an independent Sahrawi state, he simply saw no further role for himself once the guns had fallen silent. TS

29

Portraits in Western Sahara

JC Tordai Photographs cannot always reveal the circumstances of their making still less provide analysis of what is shown in their flat, confined spaces. Without bringing in information that is not contained in the image itself, a photograph is like a jigsaw puzzle whose pieces are not all to hand. Even then it may not be enough. When we first met Mohamed Daddach it seemed unimaginable that a photograph could convey any sense of what hed been through as a prisoner of conscience. The man we saw was exhausted and fragile and the photograph suggested little of the inner strength needed to survive long years in prison. It was the same when we met human rights activists, Elghalia Djimi and Aminatou Haidar, and doing justice to their courage in a portrait seemed an improbable thing to express. A photograph is sometimes described as a meeting place between the photographer, those recorded in the photograph, and those viewing it. Once it enters the public domain, it has a life of its own beyond the supervision and intentions of its author. A dateline can be changed from Western Sahara to Morocco, and a caption can steer viewers to the preferred interpretation of the editor who writes it. But, in any event, the interests of all those involved in the production or reading of photographs may be contradictory, differing claims can be put upon them, and the meanings found in them vary. The portrait of a former fighter and his baby daughter is no exception. We met them on a hot afternoon in a warren of tin shacks, home to the poorest among Sahrawis in Laayoune. It seemed odd in the circumstances that a fighter of
30

his experience would be tolerated at all given the ease with which people were disappeared in the occupied territories. It wasnt difficult to imagine the constraints he had to live with and talking to us put him at risk. As journalists we are constantly watched and no one we meet escapes the attention of the authorities. We sat looking at a loving father, listening to a fighter who had put aside his gun but not his politics. For him, the political stalemate was so entrenched that he wouldnt rule out a possibility of armed struggle in the future. For the present, civil unrest would be the response to the continuing policy of maximum land, minimum Sahrawis, and to hostile settlers stirred up by the authorities. His joy of fatherhood was tempered by concerns nothing would change soon enough to improve her chances in life. But the girl, now aged 11, lost her father to natural causes in the middle of her childhood. Looking at the photograph today, a decade after its recording, there is a sense in which, with his passing, the meeting place has shifted from father to child, and the obvious question we now ask of the photograph is what became of her? It is hard not think about the coming of age of her generation, particularly in light of what Elghalia Djimi said recently, about how everything has changed since the protest camp of Gdeim Izik. She believes a younger generation is becoming radicalised and violent, and has lost all confidence in the international community that fails to intervene. Publishing this photograph now is to acknowledge the passing of a man we found remarkable but its proper destination is with his daughter. Like a message in a bottle, his portrait at the start of her life, a keepsake for the troubled times ahead and perhaps a source of inspiration?

Contact Western Sahara Review at: email address