According the United Nations, the Western Sahara is a Non-Self-Governing Territory and it is a subject to a conflict for more than 30 years. This conflict opposes, Polesario, the Algerian overgrowth, to the Kingdom of Morocco that claims sovereignty over the entire territory.
Morocco’s natural resources exploitation is a controversial subject. Meanwhile, the question that should be raised is whether Morocco is legally competent to exploit the natural resources of the Western Sahara.
An initial divergent vision:
Due to the historical bonds of allegiance tying several Sahrawi leaders to the Moroccan Sultanate, Morocco considers the Sahara as an integral part of its territory.
On this basis, in 1975, Morocco involved, as in the same manner as the rest of the national territory, in a rational and reasonable exploitation of the resources concealed in the Sahara.
The kingdom has signed oil exploration contracts with specialized multinational firms like Total ou kerr-Mcgee. Moreover, it has concluded fisheries agreements with the European Union to exploit fishery resources.
According to the UN standards, the Western Sahara is a Non-Self-Governing Territory. It means a territory “whose peoples have not yet attained a full measure of self-government”. That is why the Moroccan presence in this territory is a subject to discussion.
Under Madrid tripartite agreements, signed in November 1975, Spain ended its colonial presence in the Sahara without transferring the administrating power to the Kingdom.
However, it has administrated, since de facto 1975, two thirds of the Sahara and from 1979, almost all the territory, after the Mauritanian withdrawal, without having any impact over the statues of the disputed territory.
The European Union implicitly recognized the Moroccan power over the territory in the fishery agreement, in which there was an article stipulates that the application of the aforementioned agreements extends to waters, along the Atlantic, that falls under the Moroccan jurisdiction.
Article 37 of the UN Charter defines the judicial regime applicable in the Non-Self-Governing Territory, and sets out some obligations concerning the administrating power, including what follows:
To recognize the principle of primacy concerning the interest of the inhabitants in the territories under control,
To accept ensuring the political, economic and social progress as well as the education advancement of the population concerned,
To help people, in due respect of their political aspirations, to adopt suitable autonomous institutions,
To transmit to the UN the information on the situation in these territories,
According to professor Bedjaoui, former president of the International Justice court, the article 37 supposes a Member State unilateral declaration that assumed or shall assume the responsibility to administrate a Non-Self-Governing Territory.
A Non-Self-Governing Territory will not be amenable to provisions, in case there is an absence of voluntary adherence to the administrating power.
Two observations to mention on the Western Sahara case:
First, including the Western Sahara as a Non-Self-Governing Territory in the General assembly of the UN list, since 1963, failed to result in a unilateral declaration of the Kingdom, because Spain was always holding a priori of a previous statement.
But this is not necessarily the case, for Special Political and Decolonization of the General assembly, Fourth Committee, mentioning the Western Sahara in the list of the Non-Self-Governing Territories shall mean that Spain will always be the administrating power of the Western Sahara.
As a sovereign state, is Morocco obliged to assume its responsibility on the Spanish undertaken actions during the colonial period? No, in any event.
Second, this voluntary adherence procedure permits to assume, by analogy, that the information furnished provided by the article 37 shall not constitute any procedural condition sine qua non to qualify an administrating power state.
This informed on the legal loophole surrounding this issue. The Moroccan exploitation of the Western Sahara natural resources is not governed by any pre-established legal category since the abovementioned article 37 addresses only the administrating powers.
So, is Morocco’s stance reprehensible if assuming that it is considered as an administrating power?
The recognition of Sahrawi people right to self-determination has lawful and economic implications that are largely embodied in the General Assembly resolutions. Indeed, this self-determination follows the principle of a permanent sovereignty over the natural resources. It means only people of Non-Self-Governing Territories have the right to freely dispose their natural resources.
The question that can be raised, does this principle prohibit the administrating power from exploiting the natural resources of its Non-Self-Governing Territories?
The General Assembly of the UN and the internationalist doctrine do not prevent the administrating power from exploiting the natural resources of the Non-Self- Governing Territories.
Nevertheless, it is required that the revenues of the said exploitation will be afforded to the development of the Non-Self-Governing Territories concerned.
In a clear and unequivocally manner, a paramount progress has been noticed in the Western Sahara, abandoned as a desert and arid area by Spain.
How to ensure the integrated development of this territory without tackling the rational exploitation of the natural resources; is not Morocco a developing country?
In this context and in the sense of logic development, the contracts concluded by Morocco with private investors were crucial for the economic progress in the Western Sahara.
It is about a paramount rule of the world economy which cannot be derogated.
An integrated territory in the national dynamic development:
The kingdom grants its Southern provinces a special attention through massive deployment in all domains in the region.
Between 2004 and 2009, more than 7, 2 Milliards of Dirham were invested in the development, the construction and the reinforcement of collective facilities and support the income-generation activities and slum clearance.
Accordingly, the school enrollment of children between 6 and 11 years in the Sahara region is superior to the national average.
In addition, creation and improvements of the infrastructures have permitted to develop, on the scale of Southern Provinces, an important commercial activity. The number of commerce registers annually granted before 1993 had not exceeded 70 and which would exceed 400 in 2003 to reach 600 in 2006.
In draft resolutions, published on June 22, 2011 and deposited with its president before the General assembly of the UN, the Moroccan development policy is in accordance with the UN norms underlining the necessity to promote “the stability”, “diversity and economy reinforcement of each territory”.
In this regard, moving out of a monolithic economy based only on exploitation and natural resources exportation to a collective economy such the one initiated by the Kingdom, reveals an imperious necessity.
Concerning the respect of local distinctiveness in southern provinces, Morocco has integrated in a general policy of development that interest all its regions.
Therefore, from the national solidarity perspective, these provinces and population benefited from the resources and participated in the economic and financial viability.
Centre for International Studies (CIS), Rabat, is a group of reflection and analysis. As an active member in the debate on the Maghreb integration, CIS is also interested in the new problematic issues related to the international security including immigration, terrorism and state fragmentation.
In 2010, after Karthal edition, CIS published a collective work titled: “a decade of reforms in Morocco (1990-2009).”
In January 2011, CIS published a second work titled “Morocco-Algeria: cross- Analysis of a hostile neighborhood” and in September 2011, a third work titled “the Saharan dispute to the UN Organization.”
In order to be active, CIS depends on several online websites among them there is a recent one called Ibn Khaldoun and can be reached at www.ibn-khaldoun.com.
By Latifa Haboula