Franck Stealing Sahara 1976

American Society of International Law
The Stealing of the Sahara

Author(s): Thomas M. Franck
Source: The American Journal of International Law, Vol. 70, No. 4 (Oct., 1976), pp. 694-721
Published by: American Society of International Law
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THE STEALING OF THE SAHARA
By ThomasM. Franck*
INTRODUCrION
The Western-or,untilnow, Spanish-Saharais a smallplace. Its de-

colonization and thefortunes of its mere75,000inhabitants do not attract
instantor prolongedpublic attention.Nevertheless, or, perhaps,in part
forthatveryreason,the dispositionof the Sahara case by the United
Nationshas been monumentally mishandled, creatinga precedentwitha
potentialforfuturemischief outof all proportion
to theimportance of the
territory.
The "settlement" of the Saharanissue in favorof Morocco'sclaim of
historictitleand the denial of self-detelrmination
to the Sahrawipeople
radicallydepartsfromthe normsof decolonization establishedand con-
sistently
appliedby the UnitedNationssince1960. This is boundto have
an important significancefornumerousotherirredentist territorial
claims
suchas thoseofGuatemalaon Belize,'Somaliaon Djibouti,2and Argentina
on theFalklandIslands.3 Even as Moroccoand Mauritaniasolidified their
hold on the Sahara in February1976,MarshalIdi Aminof Uganda laid
claimto largepartsof Kenyaand the Sudan on the basis of tribalaffinity
and history.4In due course,an Arab Palestinewill almostcertainlyad-
Vanceterritorial claimsagainstIsrael. Indeed it may not be long before
Moroccorenewsits quiescentdesignson its partner,Mauritania.5The
* Of the Board of Editors. Part of this studywas underakenby the authorin his
capacityas Directorof the International Law Programof the CarnegieEndowmentfor
International Peace, althoughthe views expressedare his own. The authorwishesto
thankMr. Paul Hoffman, his researchassistantat Carnegie,forinvaluableassistance.
1 For a recentsummaryof UN consideration of the Belize case, see The Reportof
the Special Committeeon the SituationWith Regard to the Implementation of the
Declarationon the Grantingof Independenceto Colonial Countriesand Peoples, UN
Doc. A/10023/Add.8(Part III), at 15-29 (1975).
2The London Times has noted that "if the Frenchwithdrawcompletely,it seems
certainthat Somalia,on the model of Moroccoin Spanish Sahara, will seize it during
the ensuingtroublesbetween the Issa and Afar factions." The Times (London),
Feb. 6, 1976, at 15 (editorial). For a recentsummaryof UN considerationof this
issue,see The Reportof the Special Committeeon the SituationWith Regard to the
Implementation of the Declarationon the Grantingof Independenceto Colonial Coun-
triesand Peoples,UN Doc. A/10023/Add.6(Part II) (1975).
3 Supra note 1, at 3-14.
-The Times (London), Feb. 17, 1976, at 7; id. Feb. 20, 1976, at 6; id. Feb. 25,
1976, at 7.
5 Morocco long opposed the independenceof Mauritania. In the historicdebate
on Resolution1514(XV) Morocco accused the French of attempting"to partition
Morocco and disruptits nationalterritorial unity,by settingup an artificialState in
the area of SouthernMoroccowhich the colonialistscall Mauritania. The population
of thatarea does not even know the word 'Mauritania.' If you tell a Bedouin of so-
called Mauritaniathat you are in Mauritania,he will not understandwhat you are
694
1976] THE STEALING OF THE SAHARA 695
"sleepingdogsofhistoric title"have tendedto be constrained by theinter-

nationalcommunity's insistencethat establishedboundariesmustbe re-
spectedand can only be changedwiththe freeconsentof the people
livingin each territory.Moroccoand Mauritania,by theirtakeoverof
the Saharawithouttheconsentofitspeople,have succeededin frustrating
the applicationof this normand have takenthe international systema
blatantsteptowarda new set of mutuallysharedexpectations about state
behavior-incipient new norms-whichare muchmorelikelythan their
predecessor-rules to be conflict-inducing,even if theiroutlinesare as yet
dimlyperceived.
The precedentis destabilizing in another,broader,way. The successful
Moroccan-Mauritanian use of forceto takecontrolof the WesternSahara
has strengthened the tendencyof ThirdWorldstatesto pursuetheirna-
tionalinterestwithmilitary ratherthanlaw and diplomacy.
self-assertion
Nothingin international relationssucceedslikesuccessand in bothAngola
and theSaharatheuse offorcehas been shownto workwithoutsignificant
oppositionfromthe restof the international community.These African
eventshave had theirechoin Asia withtheIndonesianoccupationof East
Timor,anotherplace wherehistoric,geographic, and ethnicclaimswere
assertedoutof thebarrelsofrifles.6To theextentthatthislessonis taken
to heart,it makestheworldan increasingly dangerousplace-a considera-
tioncompoundedby the ThirdWorld'sleap intosophisticated weaponry.
The disposition of the Saharacase has alreadyhad a dramaticeffecton
worldorder. Some60,000Sahrawishave becomerefugees,7 creatinggreat
hardships as well as a severe strainon the and
facilities budget of the UN
HighCommissioner forRefugees. There has been active involving
fighting
theAlgerian-supported Sahrawiliberation movement POLISARIO (Frente
Popularpara la Liberaci6nde Saguia el Hamray Rio de Oro), withthe
Mauritanian Government reporting a two-daybattlewithheavycasualties
in April1976,8two monthsafterthe.Saharahad formally been "pacifed"
by the Moroccanand Mauritanianarmies. Withinthe Organizationof
AfricanUnity,the issue has been intenselydivisive. Its politicalcom-
mitteein Februaryrecommended supportfortheliberation forces,the,reby
provoking Moroccoand Mauritaniato threatena walkout.9Althoughthe
splitwas temporarily averted,'0Algeriaand othershave unilaterally recog-
nizeda Saharangovernment-in-exile and Rabat and Nouakchott thereupon
severeddiplomaticrelationswith Algiers." It will not be long before
otherstatesare compelledto choosesides.'2
talkingabout." 15 GAOR 947, at 1271 (1960) (remarksof Mr. Ben Aboud, Rep-
resentative of Morocco).
6 It is estimatedthatnearly60,000 Timoresehave been killed in the course of the-
territory'sdecolonization.N.Y. Times,Feb. 15, 1976, at 11.

7 The Times (London), April2, 1976, at 7.
8 N.Y. Post,April28, 1976, at 17.
9 N.Y. Times,Feb. 27, 1976, at 3.
20 Id. March 1, 1976, at 3.
11Id. Feb. 28, 1976, at 6; id. March8, 1976, at 7.
12At the AfricanForeign Ministers'meetingin Addis Ababa at the beginningof
696 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 70
The UnitedStates,too,has been drawnintothedispute. The announce-
mentin February1976,thatthe UnitedStateswould sell a squadronof
24 F-5E jet fighters to King Hassan II's was no doubtdictatedby real-
politik. Morocco,withSpain,is America'skeyto theMediterranean.The
government of the King is generallyperceivedas pro-American, while
Algeria'srulersare not. By contrast,theleadersof POLISARIO are tarred
by theirclose associationwiththe Algerians. In Washington's eyes,the
rightof a mere 75,000personsto self-determination is of far less con-
sequence,the moreso as theymightin any eventtendto be dominated
by Algeria,thanis the stability of King Hassan'sshakythrone. Thus,in
the name of practicalpolitics,the UnitedStateshas desertedits historic
commitment to the principleof self-determination.'4Insteadof asserting
the paramountcy of an importantworld-order norm,the UnitedStateshas
allowedpoliticsto dictateits internationalposture. In so doing,we have
beenbrought faceto face,onceagain,withthequestionwhether theUnited
States,as a leadingglobalpower,has a greaterinterest in preserving and
reenforcing of
theintegrity therulesby which the game is supposed to be
playedor in winningsubgamesregardlessof how our actionsaffectthe
rules. Put anotherway,the Sahara case faces us witha classic conflict
of legal and politicalvalues.
TmHSAHRAWI POPULATION
The WesternSahara is situatedalong the Atlanticcoast of northwest

Africa. Its tinypopulationinhibitsa land area of 266,000square kil-
ometers,almostexactlythesize ofColorado.'5 Manyoftheseare nomadic
desertherdsmentendingflocksof camel,goats,and sheep,although,in
recentyears,a sizable urbansettlement has developedin the capital,El
Aaiun,which,beforethe Spanishevacuation,had a civilianpopulationof
almost30,000,as well as in Semaraand Villa Cisneroswithapproximately
7,000and 5,500inhabitants each.16 These figuresdo notincludeSahrawis
who have been livingin neighboring countries, especiallyMoroccoand
for
Algeria, eitherpolitical or economicreasons. The best estimatesof
thenumberof theseexileshas ranged from the Spanishfigureof 10,00p,
to a highof about50,000claimedby theliberation movements and neigh-
boringstates.17 SincebothMoroccoand Mauritaniahave takenthe posi-
tionthatthe Sahrawisare theirnationals,no borderbarriersexistedeven
March,1976, it was reportedthatas manyas twentyAfricanstatesfavoredrecognition
of POLISARIO. Id. March 1, 1976,at 3.
13 Id. Feb. 22, 1976, at 1.
14 For a discussionof the historic
U.S. relationto self-determination,
see Pomnerance,
The UnitedStatesand Self-Determination: Perspectiveson the WilsonianConception,
70 AJIL 1 (1976).
15 Reportof the United NationsVisitingMission to Spanish Sahara, 1975, in The
Reportof the Special Committeeon the SituationWith Regardto the Implementation
of the Declarationon the Grantingof Independenceto Colonial Countriesand Peoples,
UN Doc. A/10023/Add.5,Annex,at 26 (1975) [hereinafter cited as VisitingMission].
16 Id. at 27.
17 Id. at 28.
in colonial times to stem,or even to record,theirmovements. Social and

ethnicties between the people in the WesternSahara and those nearby in
Morocco, Algeria, and Mauritania make it particularlydifficultto state
definitivelywho is and who is not a Sabrawi. (One of the exiled leaders
of POLISARIO, forexample,is Abmed Baba Miske,the formerMauritanian
Ambassadorto the United Nations and to Washington.) This facttook on
political impoltance when it came to discussion of a self-determination
plebiscite. Under the "right"arrangements,the polling could easily be
skewed by importedMoroccans and Mauritaniansposing as Sahrawis.18
This difficulty,
while importantto bear in mind in assessingthe decolon-
ization tacticsemployedin the case of the Spanish Sahara, is far fromun-
precedented in Africa. Indeed, it is the rule rather than the exception
for the boundaries of those new nations to reflectthe cavalier indifference
of the colonial powers towards tribal groupings and nomadic routes of
passage. In virtuallyevery Africanstate there are tribes with close his-
toric and social links across political boundaries. In some areas, such as
the Ogaden of the AfricanHorn, the problemis everybit as acute as, and
similar to that of, the Western Sahara. Moreover,historyis a fount of
injusticesand, in many instances,the aggrievedhave long memories. The
question is whether,in the name of redressingancient grievances,trau-
matic new wrongs should be inflictedon the currentinhabitantsof a
territory.
THE PRIMACY OF SELF-DETERMINATION AND THE INTEGRITY OF BOuNDAmEs
The precedentsin such instances,priorto the WesternSahara and Timor

cases, are relativelyconsistentand uncomplicated.Generally,neighboring
states have not been allowed to help themselvesto adjacent territorieson
the basis of historic claims; boundary readjustmentsmust come as an
expressionof the democraticallyexpressed will of those subject to the
18 An excellentshortsummaryof Saharan demography is providedby the 1975
reportof a UN VisitingMissionto the country.It statesthat:
[the] indigenouspopulationof the Territoryis comprisedfor the most part of
personsof Moorish,or bedouin, race who are united by a commonlanguage,
hassania (a formof Arabic), and by strongculturaland traditional ties . . . [T]he
basic social unit, the family,is not thoughtof as an independentgroup, but
ratheras formin a part of a social group (fraction),and familygroup (sub-
fraction)of a tribe. . . in mostcases extendingfarbeyondthe politicalfrontiers
of the Territory.Thus, the majorityof Saharansidentifycloselywithothermem-
bers of theirtribe,for instancethe Ermiibat,Ait Lahsen and Ulad Delim to
name only three,who are to be foundalso in Mauritania,Moroccoand Algeria.
This is in conformity with age-old traditionby which the various tribalgroups
have nomadizedoverwide-ranging areas withoutany regardto the politicalbound-
ariesimposedby colonialr6gimes;it was in factan intrinsic featureof a traditional
economicsystembased on a continuoussearchforpastureand waterand in which
ownershipof land was unknown. Today, thoughnomadismis declining,thereis
stilla markedsense of kindredamongthe membersof tribesand theirsubdivisions
whichstraddlethe frontiers of the Territoryand its neighbors,and manySaharans
have leftthe Territoryeitherto live permanently amongtheirrelativesand kindred
in the neighboring countries,or to settletemporarilyforeconomicreasons(includ-
ing the drought)or because theyare politicalexilesand refugees. For thisreason,
and because of the close affinitybetweenthe Saharansof the Territory and those,
forexample,in the Moroccanprovinceof Tarfayaor the borderregionsof Mauri-
tania, it is extremelydifficultto determinewho among them is a Saharan in-
digenousto the Territory.Id.
readjustment.This paramountcy of contemporary self-determinationover
historicclaimsand the alleviationof ancientwrongsis based on two con-
siderations.First,thereis the assumption thatany otherapproachwould
lead to endlessconfficts, as modernstatesfoundthemselves underpressure
to join a generalreversionary marchbackwardto a statusquo ante of
uncertainage and validity. Second,it is widelyobservedthat statesor
even colonieswithestablishedboundariesand fixedpopulations, however
unjustlyor serendipitously arrivedat, soon develop a cohesivelogic of
theirownthatshouldnotbe lightlyoverriden.
It is forthesereasonsthatAfricanstateshave insistedthateach colony,
in thefinalstageof decolonization, mustexerciseits "right"of self-deter-
minationwithinthe confines of establishedboundaries. Even though,in
some cases,thistendsto perpetuatecertainhistoricinjusticesor cultural
hardships, it has been recognizedthatotheralternatives are worse. To at-
tempta wholesaleredrawing of themap of Africaon the basis of ancient
claimsor oftriballinkscould onlylead to chaos,war,and the unraveling
of a continent's state system. Africa'spost-independence leadersunder-
stoodthat,whiletherewere injustices, theycould betterbe dealt with
through functional arrangements betweensovereign statessuchas regional
commonservicesand markets,rightsof unhinderedmovementacross
frontiers, and,perhaps,federations.
So it was at the insistenceof the Third World that the landmark
UN Declarationon the Grantingof Independenceto ColonialCountries
and Peoples,"9while proclaiming that "[a]ll peoples have the rightto
self-determination" 20also warnedthat"[a]ny attemptaimedat the partial
or totaldisruption of the nationalunityand the territorial of a
integrity
country is incompatible withthepurposesand principles ofthe Charterof
theUnitedNations." 21 The Organization of AfricanUnityhas reenforced
the rule that territories must exercisetheirrightto self-determination
withinestablishedcolonialboundaries.22 If a territorywishesto join with
one or severalneighboring states,it shouldhave therightto manifest that
preference in theprocessof decolonization, but it mustbe the freechoice
of the majority in thatparticularcolony,and a territory withrecognized
boundariesmay neitherbe absorbednor dismembered againstthe will
ofitsinhabitants.
UN PRACrICEIN IMPLEMENTING TiE RULE OF SELF-DETERMINATION

WITHIN ESTABLISHED COLONIAL BOUNDARIES
The recordof democracyin the new states (or, forthatmatter,in a

oftheold) wouldscarcelyoverjoyMontesquieuor J. S. Mill. In
majority
19G.A. Res. 1514, 15 GAOR Supp. 16, at 66-67, UN Doc. A/4684 (1966).
20 Id. Art. 2.
21 Id. Art. 6.
220AU AssemblyAHG/Res. 17(I), Cairo OrdinarySession,17-21 July1964. See
also The Charterof the Organizationof AfricanUnity,Article3(3), which pledges
and territorial
"respectforthe sovereignty of each State and forits inalienable
integrity
rightto independentexistence."
one respect,h-owever, the democraticaspirationhas fared relativelywell.

During the past three decades it became virtuallystandard practice to
encouragecolonial populations,at the momentjust beforeindependence,to
participatein a genuineact of freechoice. In mostinstances,thatact deter-
mined which partyand governmentwould assume the reins of power. In
othercases, the issues were more complex: Should the new nation enterits
era of independenceas a single entity?Should it, or part of it, join another
state? Should it reconstituteitself into several independent,or federated
nations? Most of the votersin these new states have never since had oc-
casion to participatethroughsecret ballot in the decisionmakingprocess
of their countries. But at least in making that one crucial choice, the
principleof popular participationhas genexallybeen respected.
As early as 1954, the UN General Assemblyhad voted that "a mission,
if the General Assembly deems it desirable, should, in agreement with
the AdministeringMember, visit the Non-Self-Governing Territorybefore
or during the time when the population is called upon to decide on its
futurestatus.. .2 23 Accordingly,the United Nations supervisedplebiscites
or elections in the British Togoland Trust Territoryin 1956, in French
Togoland in 1958, in the British-administered NorthernCameroons Trust
in 1959 and 1961, in SouthernCameroons in 1961, in Belgian-administered
Ruanda-Urundi in 1961, in Western Samoa in 1962, and in Papua-New
Guinea in 1972.24 Representativesof the UN Trusteeship Council also
observed the controversialplebiscite in the Northem Marianas in June
1975, in which a majorityvoted to separate fromthe U.S. Pacific Islands
Trust Territoryand to become a Commonwealthin political union with
the United States.25
With the creation,in 1961, of the UN's watchdog Special Committeeon
the Situationwith Regard to the Implementationof the Declaration on the
Grantingof Independence to Colonial Countriesand Peoples,26adherence
to standardsfor decolonizing Trust Territories-wherethe United Nation
had a clear legal interest-began also to be demanded forordinarycolonies.
Since its creation,the Special Committee,in the words of the UN Depart-
ment of Political Affairsand Decolonization, "has emphasized the desir-
abilityof a United Nations presence in the finalstages of the self-determi-
nation process in non-self-governing territoriesparticularlyin those situa-
tions where the people are being asked to decide on a constitutional
formulafallingshortof independence or where concern has been voiced
regardingthe full respect for democratic processes during the electoral
consultation."27 Thus, the Special CommitteearrangedforUN supervision
23G.A. Res. 850, 9 GAOR Supp. 21, at 28, UN Doc. A/2890 (1954).
24FifteenYears of the UnitedNationsDeclarationon the Grantingof Independence
to ColonialCountriesand Peoples,2 DECOLONIZATION,No. 6, at 19 (1975) [hereinafter
cited as FifteenYears].
25 Id. at 22.
26G.A. Res. 1654, 16 GAOR Supp, 17, at 65, UN Doc A/5100 (1961).
27 FifteenYears,supra note 24, at 19. Enumeratedhere are the manyinstancesof
self-deterninationelectionsand plebiscitesin which the UN GeneralAssemblyasked
oftheelectionsfora legislature to writethenew constitution fortheCook
Islandsin April1965,whichled to "freeassociation" withNew Zealand.28
In 1967,theGeneralAssembly recommended theholdingofa generalelec-
tion in EquatorialGuinea withUN participation priorto independence
and in 1968 Spain implemented thatrequest.29The UnitedNationshas
also participated in votes on self-determination in the New Zealand ter-
ritoryof Niue in 197430 and, in the same year,observedthe referendum
in the Ellice Islands wherebythe votersdecided to become a separate
colonyunderthenameofTuvalu.31
Not all the initiatives
have comefromthe GeneralAssembly.In 1963,
the Secretary-General was askedby the Governments of the Federationof
Malaya,Indonesia,and the Philippinesto send a missionto the British
territories ofSarawakand NorthBorneoto determine whether thosepopula-
tionswishedto be integrated withMalaya intoa new federation of Ma-
laysia. The mission,composedof senior diplomatsappointedby the
Secretary-General, reportedthatthevotesforfederation in thelegislatures
of NorthBorneoand Sarawakcorrectly represented the freelyexpressed
wishesofthepeopleofthoseterritories.32
Thereare,ofcourse,exceptions to therule. In one instancethe United
Nationshas taken the positionthat a free self-determination vote or
plebisciteshouldnotbe takenin a colony. The GeneralAssembly actually
opposedthe holdingof a referendum in Gibraltarin 196733 whichwas
designedto solicitthevoters'choicebetweenunionwithSpain and reten-
tion of linkswithBritain. The UnitedNationsrefusedto sanctionthe
sendingof a UN observerto thatplebiscite. Indeed,the Special Com-
mitteedeploreditsbeingheld,insisting insteadthatthefutureof Gibraltar
shouldbe resolvedby negotiations betweenSpain and Britain.34
In tlhedecolonization of West Irian,the UnitedNations,in a contro-
versial,deeplydivisivevote35 foreshadowing the Saharadebates,votedto
accept as valid the Indonesian-organized "act of free choice"whichin-
volvednot a secretballot but only"collectiveconsultations" held while
theIndonesianAdministration "exercisedat all timestightpoliticalcontrol
to be involvedas observerand supervisor,an involvement sometimeswelcomedand

sometimes not by the colonialauthority.
28 G.A. Res. 2005, 19 GAOR Supp. 15, at 7, UN Doc. A/5815 (1965).
31 FifteenYears,supra note 24, at 21.
323 REPERTORY OF PRACTICE OF UN ORGANS, Supp. No. 3 (period 1959-1966), at 98;
see also 19 GAOR Supp. 1A, at 8-9, UN Doc. A/5801/Add.1(1964).
3422 GAOR, Annexes,Addendumto Agenda Item No. 23 (Part II), at 238, UN
Doc. A/6700/Rev.1(1967).
35G.A. Res. 2504, 24 GAOR Supp. 30, at 3, UN Doc. A/7630 (1969). Before
ratifying the "act of free choice" the GeneralAssemblyrejectedan amendmentsub-
mittedby Ghana which would have given the people of West Irian a furtherop-
portunity to expresstheirwill. 24 GAOR, Annexes,Agenda Item No. 98, at 40, UN
Doc. A/L.576 (1969). The Ghanaianamendment was defeatedby a vote of 60 to 15
with39 abstentions.
overthepopulation." 3? The delegatefromSierraLeone to theUN General
Assemblyexpressedthe fear of his and otherdelegationsthatthe same
argumentsbeingused by Indonesiaagainstapplyinginternational stand-
ardsoffreeelectionsto WestIrianleftroomforothercountries like South
Africa,Portugal,and SouthernRhodesiato deny self-determination to
theirblackAfrican majoritiesin favorofrigged"consultations."3
Therehave been a few otherinstancessince the creationof the UN

Special Committee in 1961wherea colonialpowerhas rejecteda request
by the UnitedNationsto supervisea self-determination electionor refer-
endum,38as well as a fewcases (such as thePortuguese colonies)in which
decolonization
occurred primarilyas a resultof a domesticwarofliberation
ratherthanbypoliticalevolution.Buttherehas also grownup through the
vast majorityof cases a clear patternof orderlydecolonization through
freelyconductedelectionsor plebiscites, oftenunderUN supervision, in
whichthelocal populationhas had the opportunity to chooseits own na-
tionaldestiny. It is thispatternwhichis so dramatically brokenin the
case oftheSpanishSahara.
THE UNSUCCESSFUL UN EFFORT TO SECURE THE RIGHT OF

SELF-DETERMINATION FOR THE SAHRAWIS
The failureoftheUnitedNationsto ensurea self-determination election

orplebiscitein theSaharabeforeitsfinaldecolonization is a breaknotonly
witha well-established and salutarygeneralpatternof normsforcolonies
in generalbut also withthe policyconsistently advocatedspecifically for
the Sahara in UN debates and resolutionsduringmore than a decade.
Duringthepasttwoyears,thedisposition oftheSaharaissuein theUnited
NationsrevealedthatOrganization at itsmostpoliticaland leastprincipled.
The questionof the SpanishSaharahas been exlhaustively discussedin
theSpecialCommittee oftheGeneralAssembly sinceSeptember, 1963and
in GeneralAssemblyplenarysessionssince Decemberof thatyear. The
firstof a streamof resolutionscallingon Spain to implement the Sahara's
rightto self-determination
was passedin Committee on October16, 1964;39
the GeneralAssemblyfollowedsuit one year later.40Madrid'sposition,
duringthisperiod,was thatits Africanterritories as provincesof metro-
politanSpain,werenotsubjectto self-determination.41
36 Report of Secretary-Generalregardingact of self-determination
in West Irian,
24 GAOR, Annexes,AgendaItem No. 98, at 2, UN Doc. A/7723 (1969).
37 Reportof the Secretaly-Generalon the Work of the Organization. 25 GAOR,
Supp. 1, at 64, UN Doc. A/8001 (1970).
38 Francerefusedto accept a UN presenceduringits 1967 referendum on the future
of FrenchSomaliland.
89 19 GAOR, Annexes,AnnexNo. 8 (Part I), at 290-91, UN Doc.
A/5800/Rev.1
(1964).
41 Note by the Secretary-General,
13 GAOR, Annexes,Agenda Item No. 36, at 37,
UN Doc. A/C.4/L385/Rev.1 (1958). See also Law of 21 April1961 and Decree No.
3349 of 29 November1962.
702 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [ Vol. 70
From the veiy beginning, Morocco'sdelegateswere ambiguousabout

whetherto supportself-determination. On the one hand,theyasserted
thattheircountry ultimatelywouldregainthe Moroccanterritories which
remainedundercolonial dominationand had been separatedfromthe
country underan arbitraryand annexionist
(sic) policycarriedout at its
expensebythepowerswhichhadplacedthemunderthejurisdiction oftheir
respectiveprotectorates.42However,concedingthat Spanishand world
opinionwouldnot thentolerateforcible"reunification,"the Rabat regime
at a meetingoftheUN SpecialCommittee in AddisAbaba in August,1966
actually took the initiativein proposingthat the Sahara and other
Spanishcolonies"shouldas soon as possiblebe grantedtheirindepend-
ence"'43 (emphasisadded). That independence, it was added, mustbe
genuine,"enablingthepeopleofthoseTerritories to exerciseall therespon-
sibilitiesof powerthemselves,withoutany colonialistpresence"and, in
choosing"the path most appropriateto theirinterests. . . withinthe frame-
workof Africanunity," 44 it was expectedin Rabat thattheywouldfreely
chooseto join Morocco.
A similarpositionwas takenat thesame1966meetingbytheMauritanian
Government, therepresentative of whichalso pressedhis country's
historic
titleto the WesternSahara while notingthat Morocco'sPresidenthad
characterizedMorocco'sclaims "as ridiculousas those which England
mightnow make againstFrance on the pretextthat, at the time of
Joanof Arc,Paris and a largepartof Francehad been occupiedby the
English." Yet Mauritania, too, averredthatthe WesternSahara,while
a partofitsdomain,"shouldbe completely
historically independent"which
meant"ofSpain,but also,of course,of Morocco."4"
The twenty-firstsessionof theGeneralAssembly, in 1966,reaffirmed
the
rightof the peoplesof the SpanishSaharato self-determination but went
furtherin describinghow thiswas to be implemented.It invitedSpain
.. . to determineat the earliestpossibledate,in conformity withthe
aspirationsof the indigenouspeople of SpanishSahara and in con-
sultationwiththe Governments of Mauritaniaand Moroccoand any
otherinterestedparty,theprocedures fortheholdingof a referendum
underUnitedNationsauspiceswitha viewto enablingtheindigenous
populationoftheTerritory to exercisefreelyitsrightto self-determina-
tion,and,to thisend:
(a) To createa favorableclimateforthe referendum to be con-
ductedon an entirely free,democratic and impartialbasis by permit-
ting,interalia,thereturnof exilesto theTerritory;
...
42 Reportof the Special Committee
on the SituationwithRegardto the Implementa-
ion of the Declaration on the Grantingof Independence to Colonial Countries
and Peoples,21 GAOR, Annexes,Addendumto Agenda Item No. 23, 603. UN Doc.
A/6300/Rev.1(1966).
43Id. at 604.
"4Id. at 605.
45Id. at 607.
46Ibid.
(d) To provideall thenecessary to a UnitedNationsmis-
facilities
sion so thatit maybe able to participateactivelyin the organization
and holdingofthereferendum....47
The Assembly also askedtheSecretary-General to appointand sendto the
Saharaa specialmission"forthepurposeof recommending practicalsteps
forthe fullimplementation of the relevantresolutions of the GeneralAs-
sembly,and in particularfor determining the extentof United Nations
participationin thepreparation and supervision of tlhereferendum...."
On May 11, 1967,the Madridgovernment promulgated a decreeestab-
lishinga GeneralAssemblyof SpanishSahara-or Yema'a-the member-
ship of whichwas to be partlyelected.49 The twenty-second sessionof
the GeneralAssemblywas not impressed, seeinga transparent effortby
Spain to createa local government mannedby the seniortribalestablish-
mentand otherconservative elementsowingtheirrole to Spain and the
statusquo, and reiterated the resolutionof the previousyear.50Indeed,
all six resolutionsadoptedby the GeneralAssemblybetween1967 and
1973echo theprescriptions of the 1966resolution and,in particular, those
paragraphs whichrelateto theorganization of a referendum and the send-
ingofa specialUN missiontosuperviseself-determination in theterritory.5'
Despite such a rare and repeateddisplayof public unanimity among
all thekeystates,the clearand normative prescriptions of theresolutions
were not followed. Instead,what occurredduringthe next six critical
yearswas theacceleration ofefforts by all partiesto arrangetheirpreferred
a
outcomebehind facade of supportforself-determination. Spain con-
tinuedto arguethatdue to thenomadicnatureof thepopulationand the
physicalfeaturesof the country, preparations forself-determi-nation could
not be hurried.52Moroccoand Mauritaniainterpreted this as a way of
buyingtime to entrenchthe pro-Spanishtraditionalists installedin the
Yema'aand to ensuretheirvictory in an eventualplebiscite.At the same
timebothcountries usedtherightto be consultedby Spainon thepolitical
development of the Sahara (a rightextendedby the GeneralAssembly
resolutions)as a way ofpreventing, ratherthanaccelerating, the evolution
of self-govermment. In public,Spain,Morocco,and Mauritaniasharedan
48 Ibid.
4922 GAOR, Annexes,Addendumto AgendaItem No. 23, at 209, UN Doc. A/6700/
Rev.1 (1967).
50G.A. Res 2354, 22 GAOR Supp. 16, at 53-54, UN Doc. A/6716 (1967).
51 The 1968 resolution is G.A. Res. 2428, 23 GAOR Supp. 18, at 63-64, UN Doc.
A/7218 (1968). The 1969 resolution,which also "regretsthat it has not yet been
possibleforthe consultations to take place whichthe administering
Powerwas to con-
duct in connexionwith the holdingof a referendum," is G.A. Res. 2591, 24 GAOR
Supp. 30, at 73-74, UN Doc. A/7630 (1969). The resolutionspassed between 1970
and 1973 are: G.A. Res. 2711, 25 GAOR Supp. 28, at 100-01,UN Doc. A/8028 (1970);
G.A. Res. 2983, 27 GAOR Supp. 30, at 84-85, UN Doc. A/8730 (1972); G.A. Res.
3162, 28 GAQR Supp. 30, at 110-11, UN Doc. A/9030 (1973).
52 Letterdated 8 September1966 fromthe Permanent Representativeof Spain to the
United Nationsaddressedto the Chairmanof the Special Committee,21 GAOR, An-
nexes,Addendumto AgendaItem No. 23, Annex,at 621 (1966).
adherenceto self-determination.In private,all threesharedan abiding
mistrustof genuinely
freepopulardecisionmaking.
Duringthis period,too, Algeriabegan to emergemore clearlyas a
protagonist.Whilecontinuing to denythatit had anyterritorial
claims,it
demandedto be consultedin any settlement, insisting
that"its interests,
based on obviousgeo-political
considerations
and on theneed forregional
unity . . . should not be disregardedin the search for a solution to the
problem. . . ,"p 53
Undoubtedly a principalfactorin thishardeningof positionswas the

increasingevidencethattheSpanishSahara,farfrombeinga uselesswaste-
land,containedgreatmineralriches. The bountiful and readilyextractable
phosphatedepositsof Bou Craa are located only97 kilometers fromthe
coast. When fullyoperative,the mineswill yieldup to 10 milliontons
of phosphateforexport.54Iron ore depositshave been foundin several
regionsand thereare expectations of findingpetroleumin the Western
Sahara's considerableoff-shore continentalshelf.55In the view of the
Spanishauthorities, the phosphateindustry couldfurnish the presentpop-
ulationof the territory a per capita revenue"equal to that of some de-
velopedcountries in Europe."6 Moroccanauthorities, on the otherhand,
professto see injusticein restrictingsuch disparatelyvast resourcesto a
tinypopulationand privatelysay that"one Kuwaitin the Arab worldis
enough."
On September21, 1973,in replyto a requestby the Yema'a,General
Francoon behalfof the SpanishCouncilof Ministers in effecttransferred
to thatAssemblya degreeof internallegislativepowerswhile retaining
the externalaffairs, defense,and certainadditionalpowersof veto and
initiative.Francoalso promisedthattheterritory couldvoteon its future
"wvhentllepopulationfreelyso requests...." 57 The UN GeneralAssembly
resolutionpassed shortly thereafteragain reaffirmed
the principleof self-
determination and, in the by now familiarterms,called for"freeand au-
thenticexpression"of the Sahrawis'wishes.58 These sentiments were
strongly endorsedby the Third World in meetingsof nonalignedand
Africanstates.59
53 Visiting Mission,supra note 15, at 24.
B4Id. at 40.
5 Ibid.
56Id. at 40-41.
r. Replyto the Communication of the GeneralAssemblyof the Sahara by the Head
of the SpanishState. UN Doc. A/9176,AnnexIV, at 1 (1973).
58 G.A. Res. 3162, 28 GAOR Supp. 30, at 110-11, UN Doc. A/9030 (1973).
59NAC/FM/CONF.1/Res.5? August12, 1972, THE GEORGETOWN DECLARATION, THEn
ACTION PROGRAMME FOR ECONOMIC CO-OPERATION AND RELATED DOCUMENTS, CON-
FERENCE OF FOREIGN MINISTERS OF NON-ALIGNED COUNTRIES, Georgetown, Guyana,
August 8-12,-1972; OAU Council Res. CM/Res.301(XXI), OAU COUNCIL OF MmI-
ISTERS, Addis Ababa, May, 1973; Res. No. 6, IVth CONFERENCE OF HEADS OF STATE
OR GOvErNMENT OF NON-ALIGNED COUNTRIES, Algiers, 5-9 September, 1973; FUNDA-
MENTAL TEXTS, DECLARATIONS, RESOLUTIONS, ACTION PROGRAMME FOR ECONOMIC Co-
OPERATION.
19761 THE STEALING OF THE SAIHARA 705
In July1974,Spain,afterinforming Morocco,Mauritania,and Algeria,

unveileda new constitutional law forthe Sahara whichsubstantially
in-
creasedthe powersof the Yema'a.60 Six weekslaterMadridannounced
it would at last hold a referendum underUN auspices duringthe first
half of 1975.61
Theseseminaleventshad beenprecededby a seriesofmeetings in which
Spain unsuccessfully attemptedto win the cooperationof Moroccoand
Mauritaniain conducting a plebiscite.The ForeignMinister of Spainmet
withhis Moroccancounterpart in Rabat in Marchand in Madridin April.
The latterindicatedprivatelythathis countrywould permita plebiscite
onlyiftheSabrawiswerelimitedto a choicebetweenunionwithMorocco
or remaininga Spanishcolony,thusexcludingtheoptionofindependence.
The SpanishMinister also metwithhis Mauritanian counterpart in Nouak-
chottin Aprilwithoutsecuringany commitment of cooperation.On the
otherhand,whenthe Algerian,Moroccan,and Mauritanian ForeignMin-
istersmetin Nouakchott on May 10 and again in Agadiron July24, they
againpublicly"reaffirmed theiradherenceto theprincipleofself-determina-
tionforSpanishSahara"and issueda jointcommunique statingthat"self-
determinationshouldbe implemented withoutforeigninterference and in
conformity withrelevantUnitedNationsresolutions." 62
This,however,was the last Moroccanobeisanceto the normof self-

determination. WithSpainnowoommitted to a UN supervised referendum,
the hithertoprivateMoroccanoppositionto a freevote began to emerge
as a public policy. On July8, King Hassan II in a YouthDay speech
reassertedMorocco'shistoricclaimto the Sahara and threatened general
mobilizationifnecessary "to recovertheusurpedterritories." 63 Up to this
time,despiteall theUN resolutions and thedecisionsof theconferences of
thenonalignedand of the Maghrebianstates,Rabat had nevertheless per-
suaded itselfthatSpain would eventuallyagreeto negotiatea unionbe-
tween Morocco and the WesternSahara. When,instead,Spain unex-
pectedlyacceded to the GeneralAssembly's calls fora self-determination
plebiscite,Moroccosuddenlyhad to improvisean entirelynew strategy.
It decidedto proposethattheissuebe referred to the International Court
of Justice,therebyat least securinga postponement of the referendum
duringtheCourt'sdeliberations.It was also decidedthatthereference to
theCourtshouldbe limitedto an examination of thevalidityof Morocco's
titlein sucha wayas to makethatissuedispositive."You,
claimto historic
the SpanishGovernment, claim thatthe Salharawas 'res nultius,"King
Hassan declared. "You claimthatit was a territory or property leftun-
80 Letter dated 10 July1974 fromthe PermanentRepresentative of Spain to the
UnitedNationsaddressedto the Secretary-General,UN Doc. A/9655 (1974).
61 Letterdated 20 August1974 fromthe Permanent of Spain to the
Representative
UN Doc. A/9714 (1974).
UnitedNationsaddressedto the Secretary-General,
62 Reportof the Special Committeeon the SituationwithRegard to the Implemen-
tationof the Declarationon the Grantingof Independenceto Colonial Countriesand
Peoples CoveringIts Work During 1974. UN Doc. A/9623/Add.4(Part II), at 23
(1974).
63 Supra note 60, at 2.
706 THE AMEIUCAN JOURNAL OF INTERNATIONAL LAW [Vol. 70
inherited, you claimthatno powerand no administration had been estab-

lishedoverthe Sahara;Moroccoclaimsthe contrary.Let us thenrequest
thearbitration oftheInternational Court...." 64
Initially,Mauritaniadid not join in the call forsubmitting the case to
the ICJ, reiterating, instead,"its sincereintentfaithfully to respectthe
freelyexpressedwill of the populationsconcerned...." 65 However,at a
summitmeetingin Rabat,in October,King Hassan and PresidentOuld
Daddah of Mauritaniaagreedon the strategy of goingto the Courtand,
it appears,on a divisionof the Sahara regardlessof the outcomeof the
ICJ'sdeliberations.66
Algeriareluctantly endorsedtheMoroccan-Mauritanian initiative,having
been persuadedto do so in thenameof ThirdWorldsolidarity.Afterall,
it was argued,thedelaywouldinvolveno morethana yearand in no way
derogatedfromthe rightof the populationto make the finaldecision.67
The Algerianmiscalculation is understandable.In the UN discussions,
stateafterstate,whileagreeingto sendthematterto theCourt,stipulated
thatthiswas notto be construed as a departure fromtheprincipleof self-
determination.68 Spain was moresuspiciousof Moroccanmotives. In an
attemptat compromise, Madridoffered to supportthe requestforan ad-
visoryopinion,but onlyif it wereframedso as to ask the Courtto look
notonlyat historiclegal titlebut also to "considerthe legal effects of the
provisions of the Charterof the UnitedNationsand theresolutions of the
GeneralAssembly on the administering Power,the countries bordering the
Territory and, above all, the indigenouspopulation."69 Morocco,how-
ever,rejectedtheproposedrexvording.70
The vote in the GeneralAssembly'sFourthCommitteewas held on
December11 and the resolution requestingand framing the issuesforan
advisoryopinionof theICJ was adoptedby 81 to 0 with43 abstentions.7'
Spain,in abstaining, said the"questionsformulated ... were,froma legal
standpoint, ambiguous, incomplete and irrelevant,sincetheyfailedto take
intoaccountthe development of contemporary internationallaw in rela-
tion,toNon-Self-Goverming Territories,as embodiedin the Charterand in
GeneralAssemblydeclarations and resolutionson decolonization."72 The
Representative of Kenya,Mr. FrancisNjenga,condemned the delayin the
plebiscite, adding:"The peopleof SpanishSaharashouldbe the court....
64 Letterdated 23 September1974 fromthe Minister forForeignAffairsof Morocco
addressedto the MinisterforForeignAffairsof Spain,UN Doc. A/9771,Annex,(1974).
85 Letterdated 20 August1974 fromthe ActingCharg6d'affaires of the Permanent
Missionof Mauritaniato the United Nationsaddressedto the Secretary-General, UN
Doc. A/9715,Annex,at 1, 2 (1974). See also UN Doc. A/PV.2251,at 82 (1974)
(Mr. Ould Mouknass,Representative of Mauritaniaaddressingthe GeneralAssembly).
66Le Monde Nov. 27, 1975,at 1, 5. THE ECONOMIST, Sept. 13, 1975, at 58.
67 UN Doc. A/PV.2265,at 57-60 (1974).
BarbaraWhitetook the positionthather countryin principle
68 U.S. Representative
supportedthe use of the Court,wheneverpossible,in resolvinglegal disputes. UN
Doc. A/C.4/SR.2125,at 11 (1974).
69UN Doc. A/C.4/SR.2126,at 7 (1974).
70 UN Doc. A/C.4/SR.2130, at 27 (1974).
71 UN Doc. A/C.4/SR.2131,at 19 (1974). 72 Id. at 8.
19761 THE STEALING OF THE SAHARA 707
The UnitedNationswas indeedbeingaskedto treatthemas chattelsand
notas people."73 Guatemala,on theotherhand,candidlyadmittedthatit
had supportedtheresolution as a wayto halttheplebiscite,
thereby
creat-
ing a precedentfor preventing the applicationof self-determination
to
BritishHonduras(Belize) .74
THE REPORT OF THE UN VISITING MISSION
On December13 the GeneralAssemblyapprovedthe action of the
FourthCommittee by passingResolution3292(XXIX).75 This resolution
containedthreeimportant mandates:(1) thepostponement of thereferen-
dum,(2) thedespatchofa UN visiting missionto theSahara,and (3) the
requestto the ICJ foran advisoryopinion. AlthoughSpain had resisted
(1) and (3) it had welcomed(2). On the basis of consultations withits
members, theChairmanoftheSpecialCommittee appointedrepresentatives
fromCuba, Iran,and theIvoryCoast to constitute the Mission,underthe
leadershipof SimeonAke,the UN Permanent Representativeof the Ivory
Coast.78 The Missionwas chargedwithresponsibility for"securingfirst-
handinformation on thesituationprevailingin theTerritory,
includingin-
formationon political,economic,
social,culturaland educationalconditions,
as well as on the wishes and aspirationsof the people" 77 (emphasis added).
To fulfillits mandateit was to examinethe measuresSpain proposedto
taketo ensurethedecolonization oftheTerritory, and to undertake "direct
contactswiththelargestpossiblenumberof indigenousinhabitants of the
Territory,includingthosecurrently livingoutside"it in order"to ascertain
thewishesand aspirations of theindigenous people. ..." 78
The MissiontouredfromMay 8 to June9, beginningin Madridand
endingin Mauritania.In between,theytraveledextensively in theSahara,
as well as to Moroccoand Algeria. Discussionswere held withgovern-
mentleadersand officials of the politicalpartiesthathad recently begun
to take shape insidethe Sahara and amongrefugeesand exiles in the
neighboring countries.There appearsto have been a thoroughattempt
and the Missionreportedan absenceof any effort
at rigorousfact-finding,
in the countriesvisitedto interferewiththe Mission'sfreedomof move-
ment.79
What emergesfromthese extensivemonth-long is not
investigations
ambiguous. The openingpage of the Mission'sunanimousreporton the
that:
statesunequivocally
politicalsituation
Owingto the large measureof co-operation whichit receivedfrom
the Missionwas able, despitethe shortness
the Spanishauthorities, of
to visit virtuallyall the main population
its stay in the Territory,
centresand to ascertainthe views of the overwhelming majorityof
theirinhabitants.At everyplace visited,theMissionwas metby mass
7I3d. at 12. 74 d. at 25.
7 G.A. Res. 3292, 29 GAOR Supp. 31, at 103-04, UN Doc. A/9631 (1974).
78 The othermembersof the Mission were Marta JiminezMartinez (Cuba) and
ManouchehrPishva (Iran).
77VisitingMission,supranote 15, at 4. 78 Id. at 5,
79 Id. at 7-14.
politicaldemonstrations and had numerousprivatemeetingswith
representatives of everysectionof the Saharancommunity.From
all of these,it becameevidentto the Missionthattherewas an over-
wheliming consensusamongSaharansuithinthe Territory in favourof
independience and opposingintegrationuith any neighbouringcoun-
try80(emphasisadded).
Independence was foundto be theobjectiveof thetraditionalist-minded
PUNS (Partido de la Uni6n Nacional Saharani),the only legallyrec-
ognizedmovement in theterritory
and the one withwhichmostmembers
of the Yema'a said theyidentified.8'Independencewas also soughtby
POLISARIO, whichopposedPUNS as a tooloftheSpanish.82 POLISARIO
provedthatit couldorganizemassdemonstrations wherevertheteamwent
and duringthe Mission'sstay securedthe defectionof two patrolsof
Tropas Nomadas and the capture of their Spanish officers.83 It also
crippledtheconveyor beltlinkingthephosphatemineswiththe coast. If
nothingelse, theseactivitiesdispelledall doubtin the mindof the UN
teamthatthe largerof the independence movements was not the vehicle
of theSpanishauthorities.Far frombeingstaged,thereceptionaccorded
to the Mission"came as a surpriseto the Spanishauthorities who, until
thenhad onlybeen partlyaware of the profoundpoliticalawakeningof
thepopulation."84
No otherpoliticalmovements weredeemedto be remotely as significant
an expressionofSahrawiopinionas POLISARIO.85 Thus"theMissionwas
able to concludeaftervisiting
theTerritory thatthemajorityofthepopula-
tionwithintheSpanishSaharawas manifestly in favourofindependence."86
That impression was based "bothon the public manifestation whichit
witnessedand on an extremely large numberof interviews withgroups
and individualsrepresenting different
shadesof opinion. All theseinter-
viewswere held in privatein the absenceof any representatives of the
Spanishauthorities.Randomdiscussions werealso held withmembersof
thegeneralpublic."87 In El Aaiun,alone,severalthousandpersonsturned
out to demonstrate for POLISARIO.88 The Missionwas satisfiedthat
withinthe territory"thepopulation,or at least almostall thosepersons
encountered bytlheMission,was categoricallyforindependence and against
claimsof Moroccoand Mauritania,"althoughoutsidethe
the territorial
territory,amongthe small,fragmented refugeemovements, opinionswere
moremixed,reflecting therespectivepoliciesoftheMoroccan,Mauritanian,
and Algerianhosts.89
The Missionconcludedwiththe recommendation that"theGeneralAs-
semblyshouldtakestepsto enablethosepopulationgroupsto decidetheir
80 Id. at 48. 81 Id. at 50.
82 Id. at 52. 83 Id. at 52, 63.
84 Id. at 48. 85 Id. at 55.
86 Ibid. 87 Ibid.
88 Id. at 56.
89 Reportof the Special Committee
on the SituationwithRegardto the Implementa-
tion of the Declarationon the Grantingof Independenceto Colonial Countriesand
Peoples,UN Doc. A/10023/Add.5,at 11 (1975).
1976] TH STEALING OF THE SAHARA 709
own futurein completefreedomand in an atmosphereof peace and

security...." 9' To thisend,the GeneralAssemblyshouldauthorizethe
Secretary-General to appointa new visitingmissionto definethe condi-
tionsunderwhichtlheconsultation shouldtakeplace,a consultation"which
shouldtakeplace underUnitedNationsauspices."9'
The unanimity of the VisitingMissionin callingfor a UN plebiscite
on the questionof independence is all the moreremarkable because the
Iranianmemberand the IvoryCoast chairmanwerebothunderconsider-
able pressurefromtheirhomegovernments morefavor-
to reportfindings
able to theMoroccancause. Yet theywereso convincedby theevidence
tlhattheycould bringthemselves to accommodate theirhomegovernments
withlittlemorethan a toningdown of a few of the draftreport'smost
criticalreferencesto Morocco'saspirations.
THE INTERNATIONAL COURT'S ADVISORY OPINION
A few days afterthe publicationof the VisitingMission'sreport,the

International Courtrendereditsopinion.92 Spainhad arguedthattheques-
tionsposedintheGeneral Assembly'srequest foran advisory opinionshould
in
notbe answeredat all,since, focusing only on theissue of resnulliusand
historicaltitletheanswerswould be "devoid of purpose . . . irrelevant."
'3
In Algeria'sview, they "cannothave any practical effect" Il because
theydo notdeal withthe"fundamental principlegoverning decolonization"
-self-determination.95 The Court met these objectionsby stating,in
that,whateverthe questionsit had been asked,its answers,to be
effect,
comprehensive, would certainlyhave to take intoaccount"theapplicable
principlesof decolonization'because "theyare an essentialpart of the
framework of the questionscontainedin the request. The reference in
thosequestionsto a historicalperiodcannotbe understoodto fetteror
hampertheCourtin thedischarge ofitsjudicialfunctions." 6
By refusing to be narrowlyboundto thequestionsasked,the Courtwas

able to reframe thequestionessentially in themannerearlierproposedby
Spain,i.e.,how important in thefinalact of decolonization is historictitle
90Ibid.
91 A popularconsultation withthe inhabitants, the Missionnoted:
... mustbe based on the participation of all Saharansbelongingto the Territory.
It is therefore
important to establsh who is and who is not a Saharan belonging
to the Territory.The concernedand interestedpartieshave agreed thatthis task
shouldbe entrustedto a commission of expertsdesignatedby the UnitedNations,
whichwouldworkin close co-operation withthe administering Powerand withthe
otherconcernedand interested parties. Id., at 9.
92 Advisory Opinionon WesternSahara,[1975] ICJ REP. 12 [hereinafter citedas Ad-
visoryOpinion].
93Id., at 29. The questionsput to the Court by Resolution3292(XXIX), supra
note75, were the following:
I. Was WesternSahara (Rio de Oro and Sakiet El Hamra) at the time of
colonizationby Spain a territory belongingto no one (terranullius)?
If the answerto the firstquestionis in the negative,
II. What were the legal ties betweenthisterritory and the Kingdomof Morocco
and the Mauritanianentity?"
94 Ibid. 95Id. at 30.
96 Ibid.
as comparedto theriglht of self-determinations?Addressing itselfto this

questionof its own design,the Courtfoundthat,at least duringthe past
fifty
years,self-determination has becometherule,thatindependence, free
associationwithanotherstate,or integration intoanotherstate,whileall
legitimateformsof decolonization, mustcome about onlyas a "resultof
thefreelyexpressed wishesoftheterritory'speoplesactingwithfullknowl-
edge of the changein theirstatus,theirwisheshavingbeen expressed
throughinformedand democraticprocesses,impartially conductedand
based on universaladultsuffrage." 97
The CourtcitedwithapprovalthevariousGeneralAssembly resolutions
settingouttheseprerequisites ofpopularconsultation as well as ones spe-
applyingtherulesto theSaharaitself.98"Alltheseresolutions
cifically from
1966to 1973,"theCourtobserved,"wereadoptedin theface ofreminders
by Moroccoand Mauritaniaoftheirrespective claimsthatWesternSahara
constitutedan integralpart of theirterritory." Il The Court concluded
thatthe rules applicableto decolonization requirerespectfor"the right
of the populationof WesternSahara to determinetheirfuturepolitical
statusby theirownfreelyexpressedwill. Thisrightis notaffected by the
presentrequestforan advisoryopinion. .." 100 In no way shouldthe
Court'sadvisoryopinionon historictitlebe seen as derogating fromthe
rightof the people to decide theircontemporary destiny.10'By a rather
generousreadingof the requestforthe advisoryopinion,the Courtwas
able to concludethatno such derogationwas intended,thatthe concern
withhistorictitlewas probablyonlyto enable the GeneralAssemblyto
arrange"consultations betweenthe interested States,and the procedures
and guarantees requiredforensuringa freeand genuineexpression of the
willofthepeople."102
Withthat,theCourtwenton to considertheissueofhistoric title. After
a minuteexamination of evidenceofpolitical,military,religious,and fiscal
practicesin the regionbeforeSpain'sarrival,the judges foundthat"the
informiationbeforethe Courtdoes not supportMorocco'sclaim to have
exercisedterritorialsovereignty overWesternSahara."108 While "thein-
formation beforeit showsthedisplayofsomeauthority by the [Moroccan]
Sultan"oversome,but onlysome,of thenomadictribesof theregion,the
evidence"does not establishany tie of territorial sovereignty between
WestemSahaja and thatState. It does not showthatMoroccodisplayed
effectiveand"exclusive Stateactivityin the WesternSahara."104 The "in-
ferencesto be drawnfromthe information beforethe Courtconcerning
internalacts of Moroccansovereignty and fromthat concerninginter-
nationalacts are,therefore, in accordin not providingindicationsof the
existence,at therelevantperiod,of any legal tie of territorialsovereignty
betweenWesternSaharaandtheMoroccanstate."105
917G.A. Res. 1541(XV), 15 GAOR Supp. 16, at 29-30, UN Doc. A/4684 (1960),
citedby the ICJ withapprovalin its AdvisoryOpinion,at 32-33.
98 Id. at 34-35. 99Id. at 35.
100 Id. at 36. 101Id. at 36-37.
102Id. at 37. 103 Id. at 48.
E04Id. at 49. 105 Id. at 56-57.
1976] TH STEALING OF THE SAHARA 711
In respectof Mauritania'sclaim,the Court'sanswerwas essentially the

same. Althoughthereis evidenceof "the existenceof rights,including
somerightsrelatingto the land,whichconstituted legal ties betweenthe
Mauritanian as understood
entity, by the Court,and theterritory of West-
ernSahara. .. theCourt'sconclusionis thatthematerialsand information
presentedto it do not establishany tie of territorial sovereignty between
the territoryofWestern Sahara and . . . the Mauritanian entity."106
The decisionas to Morocco'sclaimwas 14 to 2, thatas to Mauritania
15-1.107One of thedissenting votesin respectof Moroccoand Mauritania
was castby an ad hoc judge,M. Boni,appointedunderthe Court'srules
by Morocco. The seconddissentin the case of the Moroccanclaimwas
castby JudgeRuda who,farfromsupporting theShariffian claim,feltthat
theCourtshouldmoreunqualifiedly have rebuffed the assertion of historic
legal ties. "Sporadicmanifestations of allegianceand authority," he de-
clared,"evenif established, are not sufficient to declarethe existenceof
legalties,whether ofa territorialorpersonalcharacter." 108 JudgeAmmoun
of Lebanon,the Court'sVice President, votedwiththe majority but,in a
separateopinion,could be perceivedto tiltin favorof the Moroccanand
Mauritanian case. All in all, however,theresultswerea sharpand essen-
tiallyunanimousrejectionboth of Morocco'sand Mauritania'shistoric
claims. Moreimportant, theCourtemphatically rejectedtheassertion that
"automatic 109can takeprecedenceovertheinhabitants'
retrocession" rights
to self-determination.
THE USE OF FORCE TO PREVENT SELF-DETERMINATION
The VisitingMissionhad foundstrongevidenceof a preference forin-

dependenceamongthepeople of the Sahara and recommended holdinga
plebisciteunder UN auspices. The ICJ had ruled that Morocco and
Mauritaniahave no valid claimto the Saharabased on historictitle,but
that,even if theydid, contemporary law accordspriority
international to
the Sahrawis'rightof self-determination.When these resultswere in,
the MoroccanGovernment came to the remarkable worthyof
conclusion,
the perverseRed Queen in Lewis Carroll'sThroughthe LookingGlass,
that "the opinionof the Court can only mean one thing:the so-called
WesternSaharawas partof Moroccanterritory overwhichthe sovereignty
was exercisedby the Kings of Moroccoand thatthe populationof this
considered
territory themselves and wereconsideredto be Moroccans....
To-day Moroccandemandshave been recognizedby the legal advisory
organof the UnitedNations."110
The dayaftertheICJ publisheditsadvisoryopinion,theMoroccanGov-
ernmentannouncedthat there would be a massivemarchof 350,000
106Id. at 68. 107 Id. at 69.
108Id. at 176 (DissentingOpinionof JudgeRuda).
109The expressionappears in JudgeDillard's SeparateOpinion,wherehe takes the
view thatthe conceptwas inapplicableto the WesternSahara and thatit was therefore
unnecessary integrity.Id. at 120.
forthe Courtto deal withthe principleof territorial
110Press release of the PermanentMission of Morocco to the United Nations on
16 October1975, quoted in UN Doc. S/PV.1849,at 11 (1975).
"unarmedcivilians"fromMoroccointothe Sahara"to gain recognition of
[Morocco's]rightto nationalunityand territorial integrity."1'1 Spain's
Representativeto the United Nationsrepliedthat this 'threatensinter-
nationalpeace and security"and invokedArticle35 of the UN Charterto
bringthe situationto the attentionof the SecurityCouncil.112Two days
later,the SecurityCouncilwas handed a tersedraftresolutionby Costa
Rica demanding "thattheGovernment ofMoroccodesistimmediately from
theproposedmarchonWesternSahara."113
The members oftheSecurity Councilwerenotreadyto taketheunquali-
fiedstepproposedby CostaRica. Instead,theyvotedto asktheSecretary-
General"to enterintoimmediateconsultations withthe partiesconcerned
and interested"-code words for Spain, Morocco, and Mauritania(coun-
tries"concerned")and Algeria (country )-and "to reportto
"interested"
the SecurityCouncilas soon as possible on the resultsof his consultations
in orderto enablethe Councilto adoptthe appropriate measuresto deal
with the presentsituation. .".4 The resolutionbacked away fromany
specificmentionof therightof self-determination,althoughit "reaffirmed"
Resolution1514(XV) "and all otherrelevantGeneralAssemblyresolutions
on the territory." 115 Neitherdid it orderMorocconot to carryout its
march. Insteaditlamelyappealed"tothepartiesconcernedand interested
to exerciserestraint and moderation, and to enable the missionof the
Secretary-General to be undertakenin satisfactory 11 This
conditions."
represented a victoryof sortsfor Moroccoin that it envisagedfurther
delayinthepreparations forthereferendum and substituteda UN negotiat-
ingroleforthatofpreparing and supervisingtheact of self-determination.
Secretary-General Waldheim,actingon his vague SecurityCouncilman-
date,proceededon a three-day trip,holdingdiscussionswiththeMoroccan
King and the Heads of Government of Mauritania,Algeria,and Spain,
as well as withrelevantministers.This was followedby a further brief
fieldtripby his personalrepresentative, Mr. AndreLewin. Out of these
negotiations emergedwhatWaldheimtookto be a consensusthat"all the
parties. . . wouldbe preparedto recognizetheUnitedNationsas an essen-
tial elementin the searchforan acceptablesolution." "17 Spain,notably,
"was readyto co-operatefullywiththe UnitedNationswhichcould be
calledupon to play an appropriate rolethatmightincludetemporary ad-
111 Letterdated 18 October1975 fromthe Permanent of Moroccoto
Representative
the United Nations addressedto the Presidentof the SecurityCouncil. UN Doc.
S/11852(1975).
112Letter dAted18 October 1975 fromthe PermanentRepresentative of Spain to
the United Nations addressedto the Presidentof the SecurityCouncil. UN Doc.
S/11851 (1975).
113 Costa Rica, DraftResolution. UN Doc. S/11853 (1975).
114S.C. Res. 377 (1975) adopted by the SecurityCouncil at its 1850th Mtg. on
Oct. 22, 1975.
115 Ibid. 116 Ibid.
117Reportby the Secretary-General in pursuanceof SecurityCouncil Resolution377
(1975) relatingto the situationconcemingWesternSahara. UN Doc. S/11863, at 5
(1975).
by the UnitedNationsuntilsuchtimeas the

ofthe Territory
ministration
wishesofthepopulationcouldbe ascertained." 118
By November1,1975,thedayafterpublication oftheSecretary-General's
Spainagainurgently
report, requesteda meetingoftheSecurity Council."19
The "GreenMarch,"as theMoroccaninvasioncameto be known,had been
announcedby Rabat forNovember4, and Madridnow declaredthatit
would defendSaharanterritory withmilitary The
force,if necessary.120
resolutionadoptedby the Council,however,was littlestronger than its
predecessor.It merelyreiterated tlhecall to "all partiesconcernedand
to avoid anyunilateralor otheractionwhichmightfurther
interested es-
calate the tension in the area. . . ." and invited the Secretary-Generalto
"continueand intensify his consultations."
121 Several membersof the
Council,Costa Rica and Swedenin particular,indicatedtheirdispleasure
thatthe need fora consensushad preventedthe drafting of a morespe-
Salazar
cificdecisionaddressedto Morocco. "Once again,"Representative
of Costa Rica said, "the SecurityCouncil . . . has avoided calling things
by theirpropernames"and "its failureto do so may be takento mean
thatit was unableto agreeon thereal cause of thecrisis."122 The United
StatesandFrance,however, successfully to orderMorocco
resistedall efforts
to"ceaseand desist."
Algeria'sRepresentative said terselythathis country "considers thatthis
march, if it crossesthe borders of the Saharan Territory, would constitute
a violationof the sovereignty of thatTerritory; an act contrary to inter-
nationallaw; an initiativeof a nature which would alterthe balance of
thisregion;and,finally, a decision, the incalculable consequences of which
would directlyaffectthe peace of thisregionand the futurerelationsof
all countriesbordering ontheTerritory ofWesternSahara."123 He charged
thatotherAfricancountries were being won over to the Moroccanside
on secret"terms"and warned that the forcibletakeoverof the Sahara
"wouldunquestionably constitute one of the mostseriousprecedents that
of
we have everhad the opportunity seeing. If we place this initiative
in an Africancontext. . . I am convinced,"RepresentativeRahal added,
"thatnot a singleAfricancountrywill fail to see the consequences,both
immediateand long-term, of the successof such a solutionif applied to
problemswhichariseon theAfrican
the variousboundariesand territorial
124 Thenhe stated:
continent."
I have been authorizedby my Government to declarehere,withall
the solemnitythisstatementmerits,thatif the SecurityCounciland
118 Ibid.
119Letterdated 1 November1975 fromthe Charged'Affaires, A.I. of the Permanent
Mission of Spain to the United Nations addressedto the Presidentof the Security
Council. UN Doc. S/11864 (1975).
120 UN Doc. S/PV.1852, at 13-15 (1975). of
(Mr. Arias-Salgado,Representative
Spain,addressingthe SecurityCouncil).
121S.C. Res. 379 (1975), adopted by the SecurityCouncil at its 1852nd Mtg. on
Nov. 2, 1975.
122UN Doc. S/PV.1852,at 22 (1975).
123 Id. at 72-75. 124 Id. at 76.
the international community are not in a positionto assume their

Algeriawill assumeitsown responsibilities....125
responsibility,
AftertheMoroccanmarchhad crossedthefrontier, the SecurityCouncil
metonce again,on the nightof November5. At an unusualclosed ses-
sion,Franceand theUnitedStatesagaineffectively prevented the Council
fromordering the Kingto call offthe march. Instead,the CouncilPresi-
dentwas merelyauthorizedto addressan "urgent request"to KingHassan
"to put an end forthwith to the declared march into WesternSahara."128
Each of the members of the Council realized,however, thatthis gesture
wouldnotsuffice to reversethe momentum, and a negativereplyfromKing
Hassan was receivedby the Councilthe next morning.'27 Nevertheless,
the Council,laterthe same day, passed a further toothlessresolutionthat
"deplored"themarchand calledon Moroccoto withdraw fromtheterritory
and resumenegotiations underthe aegis of the Secretary-General.128
The march,of course,continued.The peacefulaggression proceededin
accordancewithan immutable scriptwritten in otherinstancesof "ansch-
luss." Justbeforeit commenced, therewas theobligatory act of defection:
Mr. KhatriOuld Joumaini, the electedPresidentof the Yema'a,fledto
Agadirandpaid ritualhomageto KingHassan.129
SPAIN SELLS THE SAHARA
Between November3 and 6, the Secretary-Generals representative,

Mr. AndreLewin,again visitedMorocco,Mauritania, Algeria,and Spain.
On thisoccasionit becameclearthatsincehis priortripimportant changes
had takenplace in the positionsof the partieswhichmade obsoletethe
plan foran interimUN administration.
Secretary-General's Althoughthe
marchhad not yetbegun,it soon appearedto Lewin thatsomething had
been goingon whichhad stiffened the positionof the Moroccansand
softenedthat of Spain. The Moroccansnow rejectedoutrightany UN
interimadminis;tration,statingthat the idea had been "overtakenby
events."'30Lewin also found to the
that,whileSpain stillpaid lip-service
proposal,"thePresident
Secretary-General's oftheSpanishGovernment ex-
pressedthe view thata trilateral
agreement also could providean appro-
priateformulaif the UnitedNationswere preparedto agree to it." 131
The stagehad been set forthe abandonment oftheprincipleof self-deter-
mination,withtheleadersofMorocco,Mauritania, and Spaincosilysettling
125 Id. at 82-85.
128Officialcommuniqueof the 1853rd Meetingof the SecurityCouncil, UN Doc.
S/11869 (1975).
127 UN Doc. S/PV.1854,at 16 (1975) (Representative Slaoui,addressingthe Security
Council).
128S.C. Res. 380 (1975), adopted by the SecurityCouncil at its 1854th Mtg. on
Nov. 6, 1975.
statement
129 Mr. Joumaini's is quoted in UN Doc. S/PV.1854,at 26-27 (1975).
130 Reportby the Secretary-Generalin pursuanceof SecurityCouncil Resolution379
(1975) relatingto the situationconcerningWesternSahara. UN Doc. S/11874, at 4
(1975).
131 Id at 6.
1976] THE STEALING OF THE SAHAA 715
into Madrid to divide the spoils. With evidentdistaste,the Secretary-

Generalreported thathe wouldcontinue hisconsultations.132
On November9, KingHassan requestedthe"GreenMarchers"to return
to theirstartingpoint. On November11, tripartite negotiations at the
Ministeriallevel began in Madridculminating on November14 in a joint
Moroccan,Mauritanian, and Spanishcommuniqu6 whichnotedthat the
negotiationshad beencarriedon in "a spilitoftheutmostfriendship, under-
standing andrespectfortheprinciples oftheCharteroftheUnitedNations"
and "have led to satisfactory resultsin keepingwiththe firmdesirefor
understanding among the partiesand theiraim of contributing to the
-maintenance peace andsecurity."
ofinternational 13'
Theseresultswere,indeed,"satisfactory" to thosewho participated.Al-

thoughthe termsunderstandably remainsecret,134theirsubstancehas
becomelargelysurmisable.Spain agreedto a decolonization formulathat
allowedtheSaharato be partitioned in thewaypreviously agreedbetween
Moroccoand Mauritania.135 The referendum would be quietlyburied.
Spain,in return, wouldretaina 35 percent interest in Fosbucraa,the 700-
milliondollarSaharanphosphateindustry.138 In addition, therewerecon-
cessionsbyMoroccoconcerning fishingrightsoffthe Saharan and Moroccan
coasts,concessionsofparticular importance tothefishing industryofSpain's
nearbyCanary Islands,which are almostwhollypopulatedby ethnic
Spaniards.
Spain agreedthatit would immediately establishan interimregimein
the Sahara with Moroccanand MauritanianDeputy Governors, that it
would turnover its responsibility forthe administration of the territory
on February28, 1976,and thatthe Yema'a,"whichwill expressthe view
ofthe Saharanpopulation, will collaboratein thisadministration." 137
In thelastrespect,however,thethreegodfathers of thesettlement were

mistaken.In a finalironictwist,thehitherto servileYema'a-firstthought
an apolitical,pliablefriendofSpain,laterclaimedto have
to be essentially
been "won"overby Morocco-refusedanyfurther rolein theproceedings.
132 Id. at 7.
in pursuance
by theSecretary-General
138 Thirdreport CouncilResolu-
of Security
tion379 (1975) relating to thesituation concerning WesternSahara. UN Doc. S/
11880,Nov.19,1975,AnnexI, at 1.
134 In April,Moroccopublished thetermsof theagreement by whichMoroccoand
Mauritania will sharethe proceedsof the lucrativeBou Craa mines. The Times
(London),April17,1976,at 5.
135 Forfurther evidenceofsuchan agreement, see,e.g.,theoralpleadings, Mr.Slaoui
(Morocco)CR 75/6 (uncorrected translation)(mimeographed), Wednesday, 25 June
1975,at 6-9. In the written pleadings,Mauritania and Moroccoeach claimedthe
wholeSaharaand Mr. Slaouihad thetaskof bringing thisintoconformity withthe
partitionagreement. In he
effect, toldtheCourt notto worry aboutit,that:
... thereis a northandthereis a southwhichjuxtapose in spacethelegaltiesof
Western SaharawithMoroccoand withMauritania.Havingregardto the ques-
tionput to the Court,and considering that,by definition, the mandateof the
Courtdoesnotrelateto anypoliticalproblem and doesnotimplyanyterritorial
delimitation,thefactthatthereis overlapping betweenthenorthand thesouth
thatit wouldserveno purposeto define moreaccurately cannotmodify thesense
oftheanswers givenby-theCourt.Id. at 8.
136 N.Y. Times, Feb. 11, 1976,at 28. 137 Supranote133,Annex II, at 1.
716 TI-IE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 70
It dissolveditselfin orderto avoid havingto ratifya courseof eventsin

whichit had notbeen consulted.138To the annexingpowers,the gesture
mattered little.
How had Moroccoachievedthisbloodlessvictory?One keyappearsto
have been theterminal illnessand deathof GeneralFrancowhichwas the
counterpoint to theseevents. While the Caudillo'sincapacityparalyzed
muchoftheSpanishGovernment, theinitiativepassedto a smallgroupof
army-backed conservatives in Madridheaded by Sr. CarlosAriasNavarro,
the Presidentof the Government.These "ultras,"some of whomhad re-
luctantlybeen converted to Saharanindependence onlyon the assumption
thatit would occur underthe auspicesof the pro-SpanishYema'a and
PUNS, now favoreda Moroccansolutionovera POLISARIO-dominated
independentSahara. Towardsthe end of October,Sr. Jose Ruiz Solis,
Minister and Secretary GeneraloftheFalangistMovement, was authorized
to open negotiations withthe Moroccan-andMauritanianForeignMin-
isters.Hearingofthis,Algeriadispatcheditsownrepresentation to Madrid
whichattempted to participatein thenegotiations and to enlistthesupport
in particular
of the "non-ultras," PrinceJuanCarlos,who at thatverymo-
mentwas assumingpowerfromthe dyingFranco,and ForeignMinister
CortinaMauri. In theseefforts, Algeriahad someleverage,sinceSpainis
heavilydependenton theformer forsuppliesofnaturalgas.
For an instant,thisendrunappearedto succeed. The tripartite negotia-
tionswereadjournedby the Prince,who,havingbecomeactingHead of
State,flewoffto El Aaiunand, on November2, pledgedto lead Spanish
forcesto defendtheterritory. Even as he did so, however,the Moroccan
PrimeMinister, AhmedOsman,arrivedin Madrid and, aftera meeting
withJuanCarlos,negotiations wereresumedwiththe Spanish"ultras"led
byArias. The Kinghad been overruled ormadeto back down. Aftertwo
daysof talksOsmanreturnedto Morocco,carrying a draftproposal. It
appearsto have been agreedthatthe MoroccanGreenMarchshouldgo
on as plannedbut thattherewould be onlya tokenoccupationand that
themarchwouldhaltshortof the SpanishLegion,therebyallowingboth
governments to save face. Behindwhat the AlgerianRepresentative to
the UnitedNationscalled "thismasquerade," 139 Moroccanregulararmed
forceswereallowedto penetrate theSaharato beginthetaskofliquidating

theforcesofPOLISARIO.140
On November8, the SpanishMinisterattachedto the PrimeMinister's
office,AntonioCarro Martinez,visitedMoroccoand the nextday King
Hassan announcedthe endingof the march. At the same moment,the
MoroccanPrimeMinister iandForeignMinister flewto Madridaccompanied
by the directorgeneralof the Moroccanphosphateindustry.The Mo-
roccan-Spanish deal was all butcomplete.WithintheCouncilofMinisters,
ForeignMinisterCortinastood isolatedin his opposition. A few days
138 THE ECONOMIST, Dec. 20, 1975, at 50.
139UN Doc. S/PV.1854, at 36. (RepresentativeRahal, addressingthe Security
Council).
140 AFucANRESEARCH BULL., Nov. 1-30, 1975, at 3837.
1976] TIJE STEALINGOF THE SAHARA 717
14 signingof the tripartite

afterthe Novemiiber Mauritanian
agreement,
troopsopeneda bombardment of thesouthernSaharantownof La Guera
whichPOLISARIO had occupied. A longbloodybattleensuedwhichwas
wonwithMoroccanhelpand afterheavycasualties.
EPILOGUE
By mid-November, heavyfighting was underway in theSaharawithboth
Moroccanand Mauritanian forcesengagedby substantialand apparently
well-trainedforcesof POLISARIO which,initially, claimedcontrolover
two-thirdsof the country.14'Throughout December, the Moroccanforces
pushedPOLISARIO outof theprincipal towns and whileSabrawis
villages,
fledintoAlgeria.
Even as the sides werepreparingforbattle,the UN GeneralAssembly
resolutions.The first(Resolution3458(A)) again
passed two conflicting
called on Spain to arrangea freeand genuineact of self-determination
underUN supervision.142The latter(Resolution3458(B)) tooknote of
the Madridthree-power agreement to
and called on the Secretary-General
appointa representative to "consult"with the three-power interimad-
in orderto "assist"it in holdinga "freeconsultation"
ministration withthe
"Saharanpopulations."143 In one breadth theGeneralAssembly calledfor
the Sahrawisto exercise"theirinalienablerightof self-determination" and
in thenextit recognizedthe faitaccompliimposedon themby Morocco,
Mauritania,and Spain. The two resolutions had in commononlythat,in
theirdifferentways,both createda scenarioforfurther involvement by
the Secretary-Generalin quite unrealistic circumstancesto which that
tookprivateand, eventually,
harriedofficial public exception.144The op-
portunity to hold Spain accountableto the UnitedNationsforarranging
a regularself-determination plebisciteas envisagedby PartA was vitiated
by PartB which,in effect, recognizedthenew tripartite statuscreatedin
the Sahara by the Madridaccords. Since the three-power agreemental-
readystipulatedexactlyhow the SpanishSahara would be apportioned
betweenMoroccoand Mauritania,expectingthosecountries to conducta
"freeconsultation" afterhavingoccupiedtheirrespectivesectorswas like
inviting thecatto consultthecanaries.
It is impossibleto reconcilethesetwo resolutions.Yet bothresolutions
wereapprovedby theAssembly, the firstby 88 votesto 0 with41 absten-
tions;the secondmuchmorenarrowly, by 56 to 42 with34 abstentions.145
141d., Dec. 1-31, 1975, at 3872-74.
142G.A. Res. 3458(A), UN Doc. GA/5438,at 254-55 (1975). (Press Release)
143G.A. Res. 3458(B), UN Doc. GA/5438,at 256 (1975). (Press Release)
144WaldheimGiven Difficult Missions[Interviewwiththe Secretary-General],6 THE
DiPLOMATIC WORLD BULL., No. 5, March 8, 1976, at 1237, 1243. "I regretthis de-
velopment," Waldheimsaid of theroleassignedhimin the contradictory resolutions."It
is a negativedevelopment:you could not have a cleareranswerfromme....' Id. at
1243.
145It should be noted that the second resolutioncould have been defeatedif the
Assembly, by a simplemajority,had determined bothresolutionsto be "important"thus
requiringadoptionby a two-thirds vote of thosepresentand votingin accordancewith
Article18(3) of the UN Charter.
718 TILE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 70
Amongthe40 African statesvotingon thefirst resolution,29 votedin favor,

while 11 abstained. On the second resolution, only 12 Africansjoined
Moroccoand Mauritaniain favor,while21 wereopposedand 8 abstained.
The UnitedStatesabstainedon thefirst resolution, callingforgenuineself-
determination, but votedin favorof the second,recognizing the imposed
three-power partition.Thus,theUnitedStatesfirmly aligneditselfagainst
self-determination, againstthe majority of Africanstates,and in favorof
an arbitrarily instituted,antidemocratic solutionat dramaticvariancewith
therulesofthegamesas hitherto observed.
The U.S. votecan onlybe understood as an act of politicalexpediency
groundedin coldwar,East/Westpoliticalalliances. AmongAfrican states,
however,a considerablenumbervoted on principleratherthan politics.
Thus mostof the pro-Western membersof the O.A.U.,includingZambia,
Lesotho,Kenya,Botswana,Swaziland,Malawi,and Ghana,votedforself-
determination and againstany legitimization of the Madridaccords:this
despite these nations'evidentlack of politicalaffinity for Algeria or
POLISARIO.
Resolution 3458(B), callingfor"consultations" betweenthethreeparties
to the Madridaccordsand the Sahrawipopulation, soon becameblatantly
inapplicable. After-theYema'a (the occupiers'chosenvehiclefor con-
sultations)dissolveditself, 57 ofits103members, (includingfourmembers
of the SpanishCortes),joined POLISARIO and fledto Algiers.148 The
numberof defectors eventually roseto 72, forcingKingHassan to declare
the Yema'a dissolved.'47Late in February,1976,some of the defectors
appearto have returned to El Aaiun,permitting the Kingto reconvenea
rump Assembly to endorse partition and annexation.148 However,that
body'scredibility had reached such a nadir thatSpain preferred to terminate
its role in the tripartiteadministration two days early rather than be im-
plicated in such a bogus "consultation."
14' The Secretary-General'sspecial
Olaf
representative, Rydbeck of Sweden, returned from the Sahara at the
end of Februaryto recommend that the United Nations should refuse to
legitimatethe actionsof Morocco and Mauritania which,together with
the fighting and lack of security in the territory, made any genuine"con-
sultation"impossible.'50
Although fighting becameparticularly fierceduringJanuary to Marchof
1976,'1'thetempoof battlein the Saharamayhave subsidedtemporarily.
146UN Doc. A/PV.2435,at 92 (1975). (Representative Rahal of Algeriaaddressing
the GeneralAssembly);Le Monde,Dec. 9, 1975, at 3.
147 NEWSWEEK, JAN. 26, 1976, at 35.
148According to newspaperreports,65 memberstook part in the vote, which co-
incided with POLISARIO's proclamationof the Sahara Arab DemocraticRepublic.
N.Y. Times,Feb. 28, 1976,at 6.
149Id., Feb. 27, 1976, at 5, and interviews.
150 Ibid.; 6 THE DIPLOMATIC WORLD BULL., No. 5, March8, 1976, at 1237, 1242.
151The termination of the tripartiteadministration did not diminishthe will of
POLISARIO, or of Algeria, to resist. Fierce fightingbetween the guerrillasand
Mauritanians was reportedby the Spanishpressin January, even in the remotesouther
towns of Villa Cisneros and Aargub, far from where the Algerianswere massing. N.Y.
Times,Jan.12, 1976,at 7. At Villa Cisneros(Dakhla), the Moroccanarmycommander
In theopinionofsomeexpertUN and Africanobservers, the SovietUnion,

havingbenefitedfromU.S. reticencein the suppoit of its "clients"in
Angola,reciprocated byrestrictingthelevelofaid furnishedto POLISARIO
and the Algerianarmedforces.1S2 However,such a slowdown,even if it
occurs,is unlikelyto be of long duration. The Russiansdo not have a
monopoly on thecapacityto aid POLISARIO. The NorthKoreans,forex-
ample,whohaverecognizedPOLISARIO's government, couldfillanyvoid
leftby Sovietrestraint.Libya,too,has indicateda willingness to support
a long-termPOLISARIO effort withmoneyandarms.
More significanteven than the prospectsfor continuedbloodshedin
Northwest Africais the effectof the Saharanprecedenton the stabilityof
theinternationalsystemwhichhas cometo dependon respectforexisting
boundariesand therejectionof revisionist claimsbased on alle-
territorial
gationsofhistoricrights.The 1976President oftheUN GeneralAssembly,
ShirleyAmerasinghe of Sri Lanka,has warnedof the "depressing" global
trendamongThirdWorldstates"to replacethe old imperialism by other
formsof foreigncontrolfoundedon territorial claims."153 Tanzania'sUN
Representative Salim added that "cardinalprincipleswere involvedand
. . . howtheUnitedNationsdealtwiththemwouldhave consequencesnot
onlyin the Territory itselfbut also beyondits bordersand even beyond
the Africancontinent." 154 The ZambianRepresentative on the General
Assembly'sFourthCommitteepointedto a clear "parallelbetweenthe
claimsof GuatemalaoverBelize on the one hand,and thoseof Morocco
and Mauritania over Spanish Sahara on the other.... Policies of annexa-
tionand expansionwerebeingpursuedin totaldisregard of t-heaspirations
oftheinhabitants concernedand the UnitedNationswas
oftheTerritories
beingaskedto bless thoseunjustdesigns."155 To do so "wouldcreatea
mliostdangerousprecedentand would have far-reaching implications for
futureUnitedNationsworkin thefieldofdecolonization.The UnitedNa-
the claimsof Moroccoand Mauritania,could no
tions,if it entertained
commented thathis men werethere"to protectthe Mauritanianarmy." WEST AFRICA,

Jan. 26, 1976, at 124. During Januaryand February "bloody battles" between
Algerianarmoredcolumnsand the Moroccanarmysee-sawedaroundthe Amgala oasis
and Mahbes. N.Y. Times,Jan. 28, 1976, at 3; id., Jan.29, 1976, at 8; id., Feb. 12,
1976, at 2; id., Feb. 16, 1976, at 10; id., Feb. 17, 1976, at 9.
.The sadder effects,however,were those on the civilianpopulation. In retaliation
for the flightof Sahrawi refugeesinto Algeria,PresidentBoumedienehad already
summarily expelled30,000 Moroccanciviliansfromhis country. NEWSWEEK, Jan. 26,
1976, at 35. On February6, Algeriaformally alleged that Moroccanand Mauritanian
actions were now "virtuallyassumingthe proportionsof genocide." Letter dated
6 February1976 fromthe PermanentRepresentative of Algeriato the United Nations
addressedto the Secretary-General, UN Doc. A/31/48and S/11971,at 7 (1976). Ac-
cordingto POLISARIO, on February18 the Moroccans,using U.S. F-S fighter planes,
began to attackSahrawirefugeecamps insideAlgeriaat Oum Dreiga. In the firsttwo
days45 civilianswerereported killedand 378 wounded.
152This pointof view has been put forwardin interviews by severalhigh Secretariat
personnel.It is also expressedin JEUNE AFRIQUE,Feb. 13, 1976,at 20.
153 UN Doc. A/C.4/SR.2175,at 15, Dec. 3, 1975.
154 Id. at 22. 155 Id. at 32.
720 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [vol. 70
longerbe credible;indeed,its moralrightto insiston self-determination

in manyotherpendingcases wouldbe broughtintoquestion...." 158 The
Somaliaspokesman couldpursueexactlythe same
warnedthathis country
of
sortof historicclaimto FrenchSomaliland(Djibouti or the Territory
Afarsand Issas) as Morocco and Mauritaniaassertedto the Western
Sahara.157
The easy successof Moroccoand Mauritaniain the Sahara (and, con-
currently,ofIndonesiain Timor)againstwhollyineffectual UN opposition,
cannotbut changethe odds and encouragemorevigorouspursuitof other
territorialclaims. Nor is thereany reasonto believe thatthis renewed
tendencyto assertclaimsof historictitlecan be limitedto issues of de-
colonization.The arguments successfullyused yesterday to justify the de-
ployment of Moroccanforcesagainstthe colonyof SpanishSahara can as
well be used tomorrow to legitimate theuse of forceto reassertMorocco's
historictitleto theindependent stateofMauritania.It seemsodd thatU.S.
diplomacy shouldhave been enlistedon theside of suchsystem-transform-
ingbehavior. Muchof theterritory of theUnitedStatesis, itself,suscep-
tibleto claimsbased on historictitle. In the decolonization context, U.S.
supportforMoroccohas madeit easierforSomaliato pursueitsdesignson
Djibouti,an area of considerable strategicimportance, whereU.S. interests
wouldbe betterservedby rigorous applicationoftheverynormsthathave
beenundermined elsewhere withU.S. consent.
An important partoftheinternational lawyer'sroleis to advisehis gov-
ernment about the reciprocal normative implicationsof a proposedcourse
ofpoliticalconduct. Although political in
strategists Washington mayfeel
thattheyhave saved the Spanish Sahara from the clutches of leftistpro-
Algerianforces,the internationallawyer must warn that, even if thispoliti-
cal assessment werecorrect, the "victory" has been gainedat the cost of
reinforcing a tendency in international conduct thatcouldredoundagainst
the nationalinterest of the United States. In particular, it is predictable
thatIsrael,a statecarvedout of the Arab-Ottoman Middle East by agree-
mentbetweena colonial-mandatory power (Britain) and a UN General
Assembly fromwhichmostof Africaand Asia were stillexcluded,willfeel
theadverseimpactofthegreatercredibility nowinevitably accordedclaims
dfhistorictitle. The survivalof Israel,as of mostcountries, dependspri-
marilyon itsabilityto defenditself.However,to theextentthatitsfuture
also dependsupon its place in the international system,the handlingof
the Saharanissue by the UnitedNationshas inevitably, by implication,
undermined Israel'slegitimacy.It has shownthatmanynations,including
theUnitedStates,are willingto toleratetheuse offorceto effect a restora-
tionofhistoric titleevenin disregard ofthewishesoftheinhabitants.
For the samereason,Israel,and by derivation the UnitedStates,ought
also to be concernedabout the norm-transforming effectof U.S. support
forIndonesia'sseizureofEast Timor. In threeothercases currently before
the UnitedNations,claimsof historictitleare beingaugmentedby a fur-
therassertion thatthepeopleresidentin theseterritories-in each instance
158
Id. at 33. 157 Id. at 5.
formorethana century-arenotentitledto therightofself-determination

because theyare "importedpopulations" not nativeto the territory they
inhabit.158In the case of Gibraltar and the FalklandIslandsthisalarming
proposition has been advancedby thesidesecuringoverwhelming majority
supportin the GeneralAssembly.The Argentine Representative to the
UnitedNations,enlisting votesforhis country's case againstpermitting the
FalklandIslandersto determine theirownfuture, remindedhis fellowUN
delegatesthatthe displacement of the originalpopulationand its replace-
mentby another,aliento the region,is a wrongwhichtheymaywishto
redressin theirownregions.'59The messageforIsraelis surelywritlarge.
Yet Israelhas consistently supportedArgentina's positionin exchangefor
Argentina'ssupportinvotesofimportance to Israel.
This shouldnotbe surprising, therealistwill say. Politics-concernfor
winning-mustinevitablytake priority over law-concern for the rules.
But so stated,the poses
realist a false dichotomy. The crisisin theSpanish
Sahara offeredan excellent opportunity for the United Statesto emerge
as a principledchampion of the right ofa people within existingboundaries
to determine theirown destiny, regardless of how the boundaries, or the
people,happento have gotthere. But it does not follow thatconcern for
therulesnegatesconcernforpolitical gain. The United Statesmight have
triedto negotiatea commonfrontin theUnitedNationswithThirdWorld
statescommitted to theseprinciplesand sensitiveto theircontinuedim-
portanceto global stabilityas well as forthe decolonization of Southern
Africa.'60Such a principledcoalition might then have tried to linkthe
crisesin Angolaand the SpanishSahara,callingforsolutionsin bothin-
stancesbasedon UN supervised self-determination.
As it was, U.S. supportforthe use of forceby Moroccoin the Sahara,
and thehistory ofU.S. military intervention in Vietnam, madeit impossible
to arousemuchinternational (or congressional)concernover the use of
forceby Cuba in Angola. A realistmustappreciatethata policybased on
theapplication offorcerather thanprinciple hasnow"lost"us bothVietnam
and Angolawhile"gaining"onlythe SpanishSahara. If theseare the re-
sultsof a strategy based on winning, perhapseven politicalrealistsmight
yetbe persuadedto trya strategy basedon concernfornormative reciprocal
principles.
158 For a Guatemalanclaim based on this argument, see UN Doc. A/PV.2431,Dec.
8, 1975, at 37, 38-40, Mr. Maldonado Aguirreaddressingthe GeneralAssembly. For
the Spanish claim that self-determination is applicable only to "those who had their
roots"in a territoryand not to "settlers,"see 23 GAOR, FourthComm.,1799thmeet-
ing, at 14 (1968). For Argentina'sargumentto the same effectin respectof the
FalklandIslanders,see Reportof the Special Committeeon the Situationwith Regard
to the Implementation of the Declarationon the Grantingof Independenceto Colonial
Countriesand Peoples,19 GAOR, Annexes,AnnexNo. 8 (Part I), at 436-37, UN Doc.
A/5800/Rev.1(1964).
15928 GAOR FourthComm.,2074thmeeting,at 302 (1973).
160 For example,it is a frequentassertionof white South Africansthat mostblacks
arrivedonlyafterthe whitesettlershad begun to develop the country. It is also the
South Africanpositionthat,with the creationof black "tribalhomelands,"Africans
in the whiteareas cannotexpectto participatein the democraticprocess.

Franck Stealing Sahara 1976

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Franck Stealing Sahara 1976

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American Society of International Law

The Stealing of the Sahara

The Western-or,untilnow, Spanish-Saharais a smallplace. Its de-

"sleepingdogsofhistoric title"have tendedto be constrained by theinter-

territory'sdecolonization.N.Y. Times,Feb. 15, 1976, at 11.

The WesternSahara is situatedalong the Atlanticcoast of northwest

in colonial times to stem,or even to record,theirmovements. Social and

THE PRIMACY OF SELF-DETERMINATION AND THE INTEGRITY OF BOuNDAmEs

The precedentsin such instances,priorto the WesternSahara and Timor

UN PRACrICEIN IMPLEMENTING TiE RULE OF SELF-DETERMINATION

The recordof democracyin the new states (or, forthatmatter,in a

one respect,h-owever, the democraticaspirationhas fared relativelywell.

to be involvedas observerand supervisor,an involvement sometimeswelcomedand

Therehave been a few otherinstancessince the creationof the UN

THE UNSUCCESSFUL UN EFFORT TO SECURE THE RIGHT OF

The failureoftheUnitedNationsto ensurea self-determination election

From the veiy beginning, Morocco'sdelegateswere ambiguousabout

Undoubtedly a principalfactorin thishardeningof positionswas the

In July1974,Spain,afterinforming Morocco,Mauritania,and Algeria,

This,however,was the last Moroccanobeisanceto the normof self-

inherited, you claimthatno powerand no administration had been estab-

own futurein completefreedomand in an atmosphereof peace and

THE INTERNATIONAL COURT'S ADVISORY OPINION

A few days afterthe publicationof the VisitingMission'sreport,the

By refusing to be narrowlyboundto thequestionsasked,the Courtwas

as comparedto theriglht of self-determinations?Addressing itselfto this

In respectof Mauritania'sclaim,the Court'sanswerwas essentially the

The VisitingMissionhad foundstrongevidenceof a preference forin-

by the UnitedNationsuntilsuchtimeas the

the international community are not in a positionto assume their

SPAIN SELLS THE SAHARA

Between November3 and 6, the Secretary-Generals representative,

into Madrid to divide the spoils. With evidentdistaste,the Secretary-

Theseresultswere,indeed,"satisfactory" to thosewho participated.Al-

In thelastrespect,however,thethreegodfathers of thesettlement were

It dissolveditselfin orderto avoid havingto ratifya courseof eventsin

forceswereallowedto penetrate theSaharato beginthetaskofliquidating

14 signingof the tripartite

Amongthe40 African statesvotingon thefirst resolution,29 votedin favor,

In theopinionofsomeexpertUN and Africanobservers, the SovietUnion,

commented thathis men werethere"to protectthe Mauritanianarmy." WEST AFRICA,

longerbe credible;indeed,its moralrightto insiston self-determination

formorethana century-arenotentitledto therightofself-determination

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