Western Sahara – Resource Development, International Law and What Next

The European Court of Justice has once again set off another political brouhaha between Morocco and the European Union over the issue of their fisheries agreement. Their recent finding, confirming an earlier Advisory Opinion, that the agreement should not apply to waters off the coast of Western Sahara is quite simply wrong and poses yet another needless political obstacle to the United Nations Security Council’s search for solutions.

 

Chapter 11, Article 73 of the Charter of the United Nations is very clear on the issue of resource development in non self-governing territories. Paragraph 5 of Article 73 makes clear in its lead sentence that the Administering Authorities of such territories have the legal obligation to “promote constructive measures of development” for the people of the region.

 

Unfortunately, I suspect that Morocco’s obligation under Chapter 11 was not presented to the Justices at the ECJ in Morocco’s defense as Morocco does not recognize what it refers to as its southern provinces as a non self-governing territory, but rather as an integral part of the Kingdom of Morocco over which it exercise its just sovereign authority.

 

 Chapter 11 of the UN Charter deals exclusively with non self-governing territories and the obligations of Administering Authorities.  Those obligations cover not only issues related to political rights, but, inter alia, to issues of natural and other resource development of such territories to develop those resources to the benefit of the concerned population.

 

For Morocco to neglect its legal obligation to assist the local population in the development of its  natural resources would be a clear failure of its duties as the de facto Administering Authority of Western Sahara. With respect to the current fisheries agreement with the EU, the only real question should be whether the agreement is indeed benefitting the local population, not whether it is otherwise legally concluded. Chapter 11, Article 73, Paragraph 5 of the UN Charter already answers that question definitively.

 

Further, this is not a situation in which Morocco bears any risk with respect to its claim of sovereignty in the territory by citing its obligations under Chapter 11 of the Charter in defense of its agreement with the EU on fisheries activities. To the contrary, this seems clearly a circumstance in which Morocco has the opportunity to “have its cake and eat it too.”

 

Morocco has consistently pledged its willingness to cooperate with the Security Council, and the United Nations more generally, in an effort to resolve the continuing dispute over Western Sahara in the search for what the Security Council describes as a “mutually acceptable political solution.”  Indeed, in that regard, and in the interest of good faith cooperation with the international community, Morocco has gone so far as to offer a broad autonomy for the region, unlike what it offers to provide any other region of the country. This despite the fact that for Morocco, its southern provinces are no less and no more sovereign territory than any other province of the Kingdom.

 

Morocco is well within its legal right to assert that it is, has been and will remain sovereign in the territory while at the same time demonstrating its willingness to cooperate with the United Nations through its respect for the provisions of Chapter 11 of the Charter in Western Sahara without prejudice to its assertion of sovereignty.

 

The concluding paragraph of Article 73 requests that Administering Authorities provide the Secretary General of United Nations periodic reports on what has been done in the non self-governing territory under their effective jurisdiction to comply with the requirements therein established. This should be the appropriate mechanism through which the Secretary General and the Security Council might determine whether Morocco was in good standing with its obligations under Chapter 11, and specifically with respect to the question of natural resource development. This could help put an end to these otherwise needlessly obfuscating legal decisions from multiple extraneous international bodies not charged in the international community to assist the Parties to the conflict to find a “mutually acceptable political solution.”

 

In the interest of facilitating a calmer atmosphere in the region, and to assist the new Personal Envoy in his effort to bring the Parties together on the core political issues dividing them without further distractions, the Security Council might wish to consider requesting such a report for the Secretary General as the Council considers the renewal of the MINURSO mandate next month. A subsequent Security Council assessment and finding on Morocco’s performance under Chapter 11, Article 73 would clear away a lot of detritus that continues to clog the way forward.

Robert M. Holley, Senior Policy Adviser, MACP