Address by Ambassador Ebrahim Saley, Chief Director: North Africa – Summary and Main Conclusions at the Conference on Multilateralism and International Law with Western Sahara as a Case Study5 December 2008

Excellencies; Distinguished Guests;
Ladies and Gentlemen;
Colleagues;

As we reach the conclusion of this Conference on Multilateralism and International Law with Western Sahara as a Case Study, on behalf of the hosts, the Department of Foreign Affairs of South Africa and the University of Pretoria, I would like to thank you all for participating and the speakers in particular for their valuable insight. 

We are thankful that to the University of Pretoria for having agreed to co-host this Conference with the Department of Foreign Affairs, particularly as the University celebrates its centenary year.  This university with its rich heritage of academic excellence provided an appropriate setting for the discussions we have had over the last two days on such an important and relevant issue.

Over the last two days we have had the honour and privilege of having heard valuable presentations from some of the world’s foremost experts on the topic that we were discussing: Multilateralism and International Law with Western Sahara as a Case Study.

During our deliberations, we have reflected on the status of the territory under international law, the principle of self-determination, the respect for human rights and international humanitarian law, obligations on third states and the lawfulness and/or legitimacy of natural resource exploitation in Western Sahara.

Our discussions have shown us that the conflict in Western Sahara and the response from the international community in resolving the issue presents a pertinent case study for the assertion that legality remains the essential prerequisite for the resolution of conflict between nations.

We began our discussion by examining the legal claims to Western Sahara.  In assessing these claims, there were differing views on the application of self-determination.  The one view was that self-determination has become a peremptory norm of international law since the adoption of General Assembly resolution 1514 (XV) on 14 December 1960.

Another view put forward was that there cannot be an automatic application of self-determination and that the concept of self-determination has different meanings.  The historical claims of Morocco and the Saharawi people to the territory were also examined to ascertain the legality of each of the claims.

During the session on the historical background on Western Sahara, we were provided with a fascinating and insightful background into the history of the territory and the origins of its colonial domination.  As part of this discussion we were informed of the role of the European powers, Spain and France, in determining the status and borders of the territory and its neighbouring States.  It became clear that throughout the period of European domination of the territory, Western Sahara was treated as a separate entity to that of its neighbours, including the Kingdom of Morocco. The classification as to who constitutes the Saharawi nation was also discussed.  It became clear that the Saharawi’s are clearly defined as a people.

We also explored the role of civil society in the occupied territories and how this is strengthening and becoming a key obstacle to effective Moroccan control over the occupied territories.  The unarmed civilian resistance from within was described as a unique opportunity to build on the activities of those operating from outside to resist illegal Moroccan occupation.  Analogies were drawn to similar occurrences in East Timor’s fight for independence and the fight against Apartheid in South Africa.

It should be recalled that neither the United Nations nor any regional or international organisation, nor any other country in the world, has recognised Morocco's claims of sovereignty over Western Sahara. The Moroccan territorial claims to Western Sahara have been rejected by the advisory opinions of both the International Court of Justice on 16 October 1975 and the Legal Department of the United Nations on 29 January 2002. 

During our in depth examination of the 16 October 1975 Advisory Opinion of the International Court of Justice (ICJ), it became clear that the Court made two significant findings.  One that the territory was not terra nullius and thus not a territory not occupied by any people.  Secondly, the Court asserted that no links of sovereignty existed between the territory of Western Sahara and its neighbours Morocco and Mauritania.  Thus there were no ties that would affect the application of General Assembly Resolution 1514 granting the right to self-determination.  What became evident during our discussion was that in the case of Western Sahara self-determination does not grant sovereignty, instead it retains or relinquishes sovereignty already granted to the territory by the ICJ decision.

The role of the international community, particularly the United Nations and its Security Council was analysed and it became clear that due to the support offered to Morocco by some of the permanent members of the United Nations Security Council, Morocco has succeeded in resisting its international legal responsibilities.  The illegal occupation of the territory has never been condemned and Morocco has never been forced to comply with any of it previous undertakings such as the agreement to hold a referendum. 

It was noted that the second decade for the eradication of colonisation is coming to an end, yet Morocco’s colonisation of Western Sahara continues unabated and with impunity.  Moroccan has presented its autonomy plan as its only solution to the conflict, however it was pointed out that Morocco was offering a plan “in a place it has no legal right to be to a people of a region it is illegally occupying”.

One possible solution was offered for moving the current stalemate forward and this was to terminate the mandate of MINURSO as a means of placing pressure on Morocco.  However it was also pointed out that MINURSO does have a positive role to play and its departure would be a symbol of the international community washing its hands of this conflict, which is something we cannot afford to do.  Instead there was a view that MINURSO’s mandate should be strengthened to allow it to play a more meaningful role. 

The Security Council should be urged to provide MINURSO with a mandate to monitor and report on the human rights situation within its area of operations.  The presence of MINURSO serves as a reminder as to why it was mandated to operate in the first place, i.e. to administer a referendum.

We were reminded that Africa can never regard itself free from colonial domination if any part of it remains occupied.  However imperfect it may be, the sanctity of colonial boundaries is a principle that that has been uniformly applied to ascertain the post-colonial boundaries of African states.  To alter this fundamental principle would have far reaching consequences all over the continent. 

During our discussions, we explored the concept of occupation. We were informed that occupation law is the very antithesis of self-determination and that citizens living under military occupation suffer serious, widespread and prolonged abuses of their human rights and that this is the case for the Western Sahara.  We were provided with first-hand testimony of a human rights activist that faced these human rights abuses.

We have also reached broad consensus that the issue of Western Sahara is more than just an issue about self-determination.  It is also an issue of the violation of the international law and continued occupation.  There cannot be good occupation and bad occupation.  There is only bad occupation be it in Palestine or in Western Sahara.  Should the occupation continue, without affording the right to self-determination for the people of Western Sahara, it would be the first time since the founding of the UN after the Second World War that the international community would endorse a concept of occupation by force for the purpose of expanding ones territory.  

In examining the role of natural resources in the Western Sahara conflict, we were informed that the legal opinion provided to the United Nations Security Council by the UN Legal Counsel in 2002 made it clear that if exploration and exploitation activities were to proceed in disregard of the interests and wishes of the people of Western Sahara, they would be in violation of the principles of international law applicable to mineral resource activities in Non-Self Governing Territories.  Furthermore we discussed how the exploitation of natural resources in Western Sahara plays a central role in strengthening Morocco’s presence in the occupied territory. 

In summing up all the interventions that we have heard, it becomes clear that the Saharawi people have been denied their just and legal right to determine their own political destiny. We are concerned that such denial is a reflection of the erosion of a rules-based system that we had collectively agreed to in 1945 to ensure a stable and peaceful world. We are concerned that despite the reflection of global opinion that the 192 Member States reflect each year through their votes in the Fourth Committee of the General Assembly that their repeated call to see Western Sahara, a declared and undisputed Non-Self Governing Territory, determine its own political destiny and remove the yolk of colonialism, continuously go unheeded. We are concerned that acts of and denial, non-cooperation and further non-action could contribute to the breakdown of these codified set of rules – which we understood to be mutually beneficial and inclusive or else we would not have adopted them in the first place.

Conference Communiqué

Conference on Multilateralism and International Law with Western Sahara as a case study
hosted by the South African Department of Foreign Affairs and the University of Pretoria,
4 and 5 December 2008

1.   The South African Department of Foreign Affairs and the University of Pretoria successfully hosted the Conference on Multilateralism and International Law with Western Sahara as a Case Study in Pretoria on 4 and 5 December 2008.  This conference was the final official event of the University of Pretoria centenary celebrations.

2.   The purpose of the conference was to reflect on the foreign policy precept that the promotion of a rules based international order through multilateralism remains the essential prerequisite for the resolution of conflict between nations.  As a case study, the conference analysed Africa’s longest-running dispute - the Western Sahara conflict.

3.   The following imminent government representatives, scholars and experts reflected on the status of the territory under international law, the principle of self-determination, the respect for human rights and international humanitarian law, obligations on third states and the lawfulness and/or legitimacy of natural resource exploitation in Western Sahara:

• Ms Sue van der Merwe, South African Deputy Minister of Foreign Affairs
• Dr Sidi Omar, Member of the Polisario Front Negotiating Team, Western Sahara
• Prof Abdelhamid El Ouali, Professor of Law, University of Casablanca, Morocco
• Prof. Macharia Munene, Professor of History and International Relations, United States International University, Nairobi, Kenya
• Mr Toby Shelley, Journalist and Writer, Hitchin, UK
• Prof. Stephen Zunes, Professor of Politics, University of San Francisco, USA
• Mr Jacob Mundy, Institute of Arab and Islamic Studies, University of Exeter, UK
• Amb Frank Ruddy, US Ambassador (ret) and Former Deputy Chairman, UN Peacekeeping Mission for Western Sahara (MINURSO), Washington, USA
• Prof Haroub Othman, Professor of Development Studies, University of Dar es Salaam, Tanzania
• Mr Pedro Pinto Leite, Secretary International Platform of Jurists for East Timor, Leiden, The Netherlands
• Prof Christine Chinkin, Professor of International Law, London School of Economics, UK
• Prof Carlos Ruiz Miguel, Professor of Constitutional Law, University of Santiago de Compostela, Spain
• Sen Pierre Galand, President of the European Coordination Committee in Solidarity with the Saharawian People, Brussels, Belgium
• Ambassador Hans Corell, Swedish Ambassador (ret), Former Under Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, Sweden
• Mr Eric Hagen, Journalist from the Norwegian news service Norwatch, Oslo, Norway
• Mr Francesco Bastagli, Former Special Representative of the Secretary-General in Western Sahara, Italy
• Adv Madasa, Member of South African Parliament (ANC)
• Mr M’hamed Khadad, Polisario Coordinator with the United Nations Mission for the Referendum in Western Sahara (MINURSO) and Spokesperson for the Polisario Negotiating Team, Bir Lehlou, Western Sahara

4.   The Conference took note of petitions from:

• Juan Carlos Velázquez Elizarrarás, Professor of International Law and Cooperative Politics, University of Mexico
• Juan Soroeta Liceras, Professor of International Law, University of Basque Pais, Spain
• Marco Balboni, Professor of International Law, University of Bologna, Italy
• Prof Smail Debesche, Professor of Political Sciences and Information, University of Algiers, Algeria

5.   The Conference recognised that Western Sahara is the last colonial challenge facing the African continent and participants called upon the International Community to:

• Respect the principles of multilateralism and international legality in seeking a just, lasting and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara;
• Reaffirm the fundamental and inalienable right of the people of Western Sahara to self determination;
• Recognize that the International Court of Justice Advisory Opinion of 16 October 1975 found that no links of sovereignty existed between the Kingdom of Morocco and the Western Sahara
• Recognise the centrality and responsibility of the African Union and United Nations in the resolution of the conflict;
• Respect the Constitutive Act of the African Union, in particular the principle of the sanctity of inherited colonial borders in Africa and the right of peoples of former colonial territories to self-determination and independence;
• Support Western Sahara’s legal status at the Special Political and Decolonization Committee (Fourth Committee) of United Nations General Assembly as a non-self-governing territory awaiting decolonisation;
• Support the direct negotiations between the two parties, the Polisario Front and the Kingdom of Morocco, under the auspices of the United Nations with a view to achieving self-determination of the people of Western Sahara
• Continue the presence of MINURSO as indispensable for the maintenance of the ceasefire in Western Sahara and the holding and a free and fair referendum under United Nations auspices;
• Call for expansion the MINURSO mandate to include the monitoring of, and reporting on, the human rights situation in the MINURSO area of operations;
• Recognize that citizens living under military occupation suffer serious, wide-spread and prolonged abuses of their human rights and that this is the case in Western Sahara;
• Call upon the occupying power in the Western Sahara to respect the obligations under international law towards inhabitants of the occupied territory;
• Recognize that sovereignty does not pass to the occupying power, even under prolonged occupation, as in the case of the Western Sahara;
• Support full respect international human rights law in the occupied territories, notably the right to freedom of association, assembly, movement and expression;
• Call upon the Office of the UN High Commission for Human Rights to assume a larger role in monitoring, reporting and making recommendations on the issue of human rights abuses in Western Sahara;
• Respect for international humanitarian law and support the provision of humanitarian assistance to the Saharawi refugees in a way that is predictable, sustained and timely;
• Support the confidence building measures proposed by the Personal Envoy of the United Nations Secretary-General to create conducive climate for the resolution of the conflict;
• End the illegal exploration and exploitation of the natural resources of Western Sahara and discourage the involvement of foreign companies in such activities;
• Support the integration of the Maghreb Union as a building block of the African Union.

Issued by the Department of Foreign Affairs
Private Bag X 152
Pretoria
0002

05 December 2008