Spain’s legal obligations as administering power of Western Sahara

Spain’s legal obligations asadministering power of

Western Sahara

Carlos Ruiz MiguelProfessor of Constitutional Law

University of Santiago de Compostela (Spain)

IntroductionThe issue of Spain’s legal obligations as administering powerin Western Sahara is undoubtedly peculiar in that since 1976Spain has had no effective power in the territory (although themaritime and aerial space remain very relevant). In this paper,starting from a categorisation of models of obligationsaccruing to a colonial power vis-à-vis its colonies, I shall showthe evolution of these models in the international law of thecolonisation. To this end, I shall attempt to clarify what thelegal status of Western Sahara is and discuss whether Spaincan truly be considered the ‘administering power’ of theterritory. Taking into account the obligations now establishedfor third countries and administering powers underinternational law, I shall consider what obligations are imposedon Spain and its degree of compliance.

Antecedents: The obligations of colonisers The debate in the foundations of international lawThe foundations of modern international law were set bySpanish scholars when reflecting on the colonisation ofAmerica.1 It is not surprising to see in these early stagesquestions as to the lawfulness and conditions of thecolonisation. Three different positions were considered.

Spain’s legal obligations as administering power of Western Sahara 223

In terms of the first dating from 1539 and represented bythe founder of the international law, Professor Francisco deVitoria of the University of Salamanca, colonisation could belawful provided that the coloniser sought the good of thecolonised:

Cum illa limitatione ut fieret propter bone et utilitate eorum etnon tantum ad quaestum Hispaniorum.2

The second proposition, this time from 1540 and presentedby a professor from the University of Valladolid, Bartolomé deCarranza, colonisation is lawful, but only if it is provisional, sothat within a short period of time the colonised people mayregain their independence:

Should they (the barbarians) be instructed by honest men sothat they don’t return to their barbary; and when this task wasaccomplished after 16 or 18 years and the land be plain,because there is no risk that they return to their primitive wayof life, they should be left in their original and own freedombecause they don’t need more trusteeship.3

However, in opposition to these, a professor from theUniversity of Alcalá, Melchor Cano, introduced a third point ofview in 1546. Starting from the idea that ‘for the wisdom orpolicy sake no State has authority to conquest another’,4 Canodissents from Vitoria and Carranza stating that ‘a sovereigncannot clearly conquest by force the barbarians for theirwelfare sake’. Hence, Cano rejects the lawfulness of anycolonisation , even if subject to conditions:

I reject that the wise men from Spain should rule the ignorantsof the barbarian peoples. It is necessary to consider all thecircumstances, because maybe it’s not convenient such aperfect policy for those stupid people.5

Western Sahara Conference Proceedings224

The obligations of colonial powers under theGeneral Act of Berlin.As is generally known, the European powers decided toestablish a general international law to govern the colonialprocess at the Berlin Conference. It was then possible tochoose between on of the three possibilities embodied in thetheories of the three quoted authors: • definitive occupation to promote the well being of the local

population with annexation of the territory; • transitory occupation to promote the well being of the

population with further granting of independence; and • prohibition of any occupation.

When choosing the content of this principle, they implementedthe first position but in a more radical way than formulated byVitoria. Two points characterise this legal status: the aim ofpromoting the ‘moral and material well-being’ of the colonisedpeople is recognised, but as a secondary aim subordinated to theprofit of the metropolis; and no provision was made for thegranting of independence to the colonised territories.

The General Act of the African Conference, signed at Berlinon 26 February 1885, was primarily intended to demonstratethe agreement of the powers with regard to the generalprinciples which should guide their commercial and so-calledcivilising actions in the little-known or inadequately organisedregions of Africa. In terms of its article VI:

All the powers exercising sovereign rights or influence in theaforesaid territories bind themselves to watch over the preser-vation of the native tribes, and to care for the improvement of theconditions of their moral and material well-being and to help insuppressing slavery, and especially the Slave Trade. They shall,without distinction of creed or nation, protect and favour allreligious, scientific, or charitable institutions and undertakings


created and organized for the above ends, or which aim atinstructing the natives and bringing home to them the blessingsof civilization.

Moreover, the General Act provided in its article XXXIV asystem by which to organise the occupation of the Africancontinent:

Any power which henceforth takes possession of a tract ofland on the coasts of the African Continent outside of itspresent possessions, or which, being hitherto without suchpossessions, shall acquire them and assume a protectorate ...shall accompany either act with a notification thereof,addressed to the other Signatory Powers of the present Act, inorder to enable them to protest against the same if there existsany grounds for their doing so.

This colonial law was applied to the territory of Rio de Oro(in Western Sahara) which came under the Spanish rule somemonths before the adoption of General Act.

On 28 November 1884, the representatives of theindependent Saharawi tribe in Rio de Oro signed a treaty ofprotectorate with the representative of the Kingdom of Spainwhere it was stipulated that:

[W]e have transferred to them the territory called Uadibe orCape Blanc, in the coast, so that it may lie by the sole protectionof the government of HM the King of Spain, Alphonse XI.6

On 26 December 1884, a royal order to therepresentatives of the King of Spain in the foreign countries,confirms that Spain agrees to establish a ‘protectorate’ overthe region of Rio de Oro between cape Blanco (20º 51’ N-10º 56’ W) and cape Bojador (26º 8’ N-8º 17’ W), that is, onthe centre and south of the Western Sahara.7 This decree wasenacted before the entry into force of the General Act. The


Kingdom of Morocco did not express any reservations orprotest the Spanish declaration of a protectorate.8

The obligations of the colonial powers after World War IThe First World War brought some changes to colonial law.The main consequence was that the dominions of the defeatedpowers were submitted to the League of Nations. Some ofthose dominions (the German ones) were in Africa. And then,the colonial law relating to Africa was split into two regimes.

As far as the colonies of the non-defeated powers wereconcerned, the international law applied to their coloniesremained the treaties signed by the European powers and theGeneral Act of Berlin, with the new modifications introduced in1919. The Convention Revising the General Act of Berlin of 26February1885, and the General Act and Declaration ofBrussels of 2 July 1890 were signed at Saint-Germain-en-Laye,on 10 September 1919. The 1919 Convention does notintroduce any substantive changes to the legal regimeestablished in Berlin in 1884. It provides that under the controlof the new authorities ‘the evolution of the native populationscontinues to make progress’.

In terms of the new draft of article 11:The Signatory Powers exercising sovereign rights or authority inAfrican territories will continue to watch over the preservation ofthe native populations and to supervise the improvement of theconditions of their moral and material well-being. They will, inparticular, endeavour to secure the complete suppression ofslavery in all its forms and of the slave trade by land and sea.

But, as far as the territories resorting under the defeatedpowers were concerned, a new law was set into force, namelythe Covenant of the League of Nations of 28 June 1919. Its


article 22 contained the new law on colonisation for thoseterritories.

The first paragraph of the article introduced the generalprinciples which corresponded to those established in theGeneral Act of Berlin 1884, ie, the obligation to promote the‘well-being’ of the colonised people; and the denial of anyobligation resting on the metropolis to grant independence tothose territories.

In this sense, therefore, there are no differences between thecolonies ruled under the General Act of Berlin 1884, andthose resorting under the Covenant of the League of Nations1919. Certainly, the Covenant spoke, for the first time of theancient colonies of the states who lost the war as territories ‘notyet able to stand by themselves’. However, no obligation wasimposed to grant independence even if the territories reachedthe point at which they could stand alone:

To those colonies and territories which as a consequence of thelate war have ceased to be under the sovereignty of the Stateswhich formerly governed them and which are inhabited bypeoples not yet able to stand by themselves under the strenuousconditions of the modern world, there should be applied theprinciple that the well-being and development of such peoplesform a sacred trust of civilisation and that securities for theperformance of this trust should be embodied in this Covenant.

Some important differences were, however, introduced inthe next paragraphs. These were that:• Those colonies were not under the sovereignty of a state but

under the tutelage of the League of Nations:The best method of giving practical effect to this principle isthat the tutelage of such peoples should be entrusted toadvanced nations who by reason of their resources, theirexperience or their geographical position can best undertakethis responsibility, and who are willing to accept it, and that


this tutelage should be exercised by them as Mandatories onbehalf of the League.

• The character of the mandate differed ‘according to the stageof the development of the people, the geographical situationof the territory, its economic conditions and other similarcircumstances’. The degree of authority, control, oradministration to be exercised by the Mandatory should, ‘ifnot previously agreed upon by the Members of the League,be explicitly defined in each case by the Council’. And finally;

• Some obligations were imposed on the Mandatories:In every case of mandate, the Mandatory (should) render to theCouncil of the League of Nations an annual report in referenceto the territory committed to its charge … A permanentCommission (should) be constituted to receive and examine theannual reports of the Mandatories and to advise the Council onall matters relating to the observance of the mandates.

The character of the obligations imposed uponthe administering powers under the UnitedNations CharterThe obligations of all United Nations members regardingthe non-autonomous territories.Under the new law of the United Nations, three types ofcolonial territory can be distinguished.• ‘Mandates’ (inherited from the League of Nations);• ‘Trust territories’ (trusteeships newly established by the UN);and• ’Non-autonomous territories’ (the colonies established

before the UN Charter).

As far as the non-autonomous territories were concerned, theCharter of the United Nations introduced a major change in the


colonial law in that it imposed new obligations on all the powersruling this type of territory. In terms of article 103 of the Charter:

In the event of a conflict between the obligations of theMembers of the United Nations under the present Charter andtheir obligations under any other international agreement,their obligations under the present Charter shall prevail.

Since the Western Sahara, a colony established before theadoption of the United Nations Charter, was classified by aSpain as a non-autonomous territory in 1961, the territory wassubmitted to the provisions of the Charter. Two stages can bedistinguished in the consideration of this issue. In the first, thereis no special recognition of the obligations of the UnitedNations members regarding the non-autonomous territories.In the second, an obligation erga omnes to respect suchterritories’ right of self-determination, developed.

In the first stage, immediately following the approval of theUnited Nations Charter, no specific obligations of the memberstates were established regarding the non-autonomousterritories. Certainly, the Charter was a step forward in existingtreaties on colonial law. But initially this change affected onlythe United Nations as such and not its member states. Noreference is made in article 2 of the Charter to an obligationon the member states not involved in the colonisation process.However, article 1.2 imposes on the United Nations as awhole an obligation ‘to develop friendly relations amongnations based on respect for the principle of equal rights andself-determination of peoples’.

However, in a further stage, some new obligations arose forUnited Nations member states. The obligations imposed on thethird states to implement the respect of this right take twoforms: political and economic.


Politically, third states are obliged to observe, respect andpromote the right of self-determination. The development of theprinciple of self-determination by the resolutions of the GeneralAssembly and the case law of the International Court of Justice,has led to the imposition of obligations, not only to the UnitedNations as such, but also on all member states even if notinvolved in colonisation. As a result, it has been declared that‘self-determination’ is not only a general principle of the law of theUnited Nations, but also a right of the peoples that from now onhave a distinct and individual international status. This transfor-mation of self-determination from a principle to a principle and aright, has an important consequence. As a right, it has thecharacter of erga omnes which necessarily implies a correspon-ding obligation for all the United Nations members to respect it.

The Declaration on the Granting of Independence to ColonialCountries and Peoples (GA resolution 1514 (XV)) states that ‘AllStates shall observe faithfully and strictly the provisions of the …present resolution’. The Declaration on Principles of InternationalLaw Concerning Friendly Relations and Co-operation AmongStates in Accordance with the Charter of the United Nations (GAresolution 2625 (XXV)) provides:

Every State has the duty to promote, through joint and separateaction, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions ofthe Charter, and to render assistance to the United Nations incarrying out the responsibilities entrusted to it by the Charterregarding the implementation of the principle.

And furtherthe territory of a colony … has, under the Charter, a statusseparate and distinct from the territory from the Stateadministering it; and such separate and distinct status shallexist until the people of the colony … have exercised theirright of self-determination in accordance with the Charter.


This legal evolution was confirmed by the ICJ when it statedthat:

In the Court’s view, Portugal’s assertion that the right ofpeoples to self-determination, as it evolved from the Charterand from United Nations practice, has an erga omnescharacter, is irreproachable.9

Economically, the fight against colonialism developed anew obligation previously ignored. The Programme of Actionfor the Full Implementation of the Declaration on the Grantingof Independence to Colonial Countries and Peoples’ (GAresolution 2621 (XXV) 1970) established the obligation toavoid any economic practice in a non- autonomous territoryon behalf of the colonial power, as this is a major obstacle tothe achievement of decolonisation:

Member States shall wage a vigorous and sustained campaignagainst activities and practices of foreign economic, financialand other interests operating in colonial Territories and on behalfof colonial Powers and their allies, as these constitute a majorobstacle to the achievement of the goals embodied in resolution1514 (XV). Member States shall consider the adoption ofnecessary steps to have their nationals and companies undertheir jurisdiction discontinue such activities and practices; thesesteps should also aim at preventing the systematic influx offoreign immigrants into colonial Territories, which disrupts theintegrity and social, political and cultural unity of the peoplesunder colonial domination.

This obligation, imposed on all United Nations memberstates for all non-autonomous territories, was explicitly linkedto Western Sahara in GA resolution 3292 (XXIV) (1974):

[The General Assembly] Reiterates its invitation to all States toobserve the resolutions of the General Assembly regarding theactivities of foreign economic and financial interests in theTerritory and to abstain to contribute by their investments or


immigration policy to the maintenance of a colonial situationin the Territory.

We may therefore conclude that the third states have not onlyan obligation to respect politically the separate, different andspecific status of then ‘non-autonomous territories’, but also toprevent any economic action blurring this or supporting thecontinuation of the colonial rule. This obligation also exists forthose third states that claim to have had some legal ties with the‘non-autonomous territory’ before it was colonised by theadministering power. This is self-evident if we consider that evenan administering power occupying the territory under legitimateand valid title, finds its title affected by the principle of self-determination.

The obligations of administering powersAs with member states’ obligations, the regulation of theobligations of the administering power regarding its colonies, too,has evolved on several fronts. Initially progress was made in thatboth socio-economic (promotion of well-being) and political(development of ‘self-government’) rights were recognised. In asecond stage, both types of obligation – the socio-economic andthe political – were developed in greater detail.

In theoretical terms, during the first stage, the UnitedNations Charter created a framework between the classicalFrancisco de Vitoria model (promotion of the well-being of thecolony as condition for the annexation), and the Bartolomé deCarranza model (promotion of the well-being of the colonyand obligation to grant further independence). During thesecond, however, the Melchor Cano model (granting of theindependence without delay) appears to have dominated.

During the first stage, colonial law governing colonial powerson non-autonomous territories was mainly contained in the article


73 of the Charter. This represents an advance on the old Leagueof Nations approach in that political obligations are included withthe existing social and economic ones.

These two obligations are expressed as follows in the article73:• The colonial authority must promote the social, economic

and educational ‘well-being of the colonised people:Members of the United Nations which have or assumeresponsibilities for the administration of territories whose peopleshave not yet attained a full measure of self-government recog-nize the principle that the interests of the inhabitants of theseterritories are paramount, and accept as a sacred trust theobligation to promote to the utmost, within the system ofinternational peace and security established by the presentCharter, the well-being of the inhabitants of these territories ,and, to this end: (a) to ensure, with due respect for the culture of the peoples

concerned, their (…), economic, social, and educationaladvancement, their just treatment, and their protectionagainst abuses;

(…)(d) to promote constructive measures of development, to encou-

rage research, and to co-operate with one another and,when and where appropriate, with specialized internationalbodies with a view to the practical achievement of the social,economic, and scientific purposes set forth in this Article;

(e) to transmit regularly to the Secretary-General for informationpurposes, subject to such limitation as security and constitutio-nal considerations may require, statistical and other informa-tion of a technical nature relating to economic, social, andeducational conditions in the territories for which they arerespectively responsible other than those territories to whichChapters XII and XIII apply.

and


• The colonial authority must develop the ‘self-government’of the territory:10

Members of the United Nations which have or assume responsi-bilities for the administration of territories whose peoples havenot yet attained a full measure of self-government (…) accept asa sacred trust the obligation to promote to the utmost, within thesystem of international peace and security established by thepresent Charter, the well-being of the inhabitants of theseterritories, and, to this end: (a) to ensure, with due respect for the culture of the peoples

concerned, their political, (…) advancement, their justtreatment, and their protection against abuses;

(b) to develop self-government, to take due account of thepolitical aspirations of the peoples, and to assist them inthe progressive development of their free politicalinstitutions, according to the particular circumstances ofeach territory and its peoples and their varying stages ofadvancement.

In a second stage, which started in 1960, these twoobligations were expanded considerably: first, the political;and then the economic. The political obligations of theadministering power saw a sudden and transcendental shiftwith the adoption of the Declaration on the Granting ofIndependence to Colonial Countries and Peoples (GAresolution 1514 (XV, 1960)). The economic obligations, incontrast, evolved more slowly.

As far as the political obligations are concerned, GeneralAssembly resolution 1514 XV, 1960 (above) is reasonablyradical. After stating that the self-determination is not only a‘principle’ of the United Nations, but also a ‘right’ of thepeoples, it imposes on the administering powers the obligationto immediately start an unconditional independence process.


However, this process must be undertaken in accordance withthe freely expressed will of the peoples:

Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yetattained independence, to transfer all powers to the peoplesof those territories, without any conditions or reservations, inaccordance with their freely expressed will and desire, withoutany distinction as to race, creed or colour, in order to enablethem to enjoy complete independence and freedom.

This new obligation was further regulated in GeneralAssembly resolutions 1541 (XV) and 2625 (XXV). Theseresolutions raise the possibility that the colonised people maychoose freely between several options: full independence, andfree association with, or integration into any other state.

The economic obligations were developed subsequent tothe ‘permanent sovereignty over their natural wealth andresources’, first declared in General Assembly resolution 1314(XIII), being extended to non-autonomous territories. Theconsequence was that the administering power was speciallytasked to respect the economic right of non-self governingterritories to enjoy their resources. General Assembly resolution44/84 (1989) reiterates that:

… [A]ny administering Power that deprives the colonial peoplesof Non-Self-Governing Territories of the exercise of theirlegitimate rights over their natural resources, or subordinates therights and interests of those peoples to foreign economic andfinancial interests, violates the solemn obligations it has assumedunder the Charter of the United Nations.

The economic obligations of the administering powers werefurther developed in several GA resolutions.

First, the obligation to take effective measures to safeguardand guarantee the inalienable rights of the peoples of the non-


self-governing territories to their natural resources wasintroduced (GA resolutions 48/46 (1994)).

Urges the administering Powers concerned to take effectivemeasures to safeguard and guarantee the inalienable rightsof the peoples of the Non-Self-Governing Territories to theirnatural resources, and to establish and maintain control overthe future development of those resources, and requests theadministering Powers to take all necessary steps to protect theproperty rights of the peoples of those Territories.

It was further provided in General Assembly resolution62/120 (extended to marine activities by GA resolution62/113) that the economic activities of the administeringpower should not ‘adversely affect the interests of the peoples’.

Calls upon the administering Powers to ensure that economicand other activities in the Non-Self-Governing Territoriesunder their administration do not adversely affect the interestsof the peoples but instead promote development, and to assistthem in the exercise of their right to self-determination.

AndCalls upon the administering Powers to ensure that theexploitation of the marine and other natural resources in theNon-Self-Governing Territories under their administration isnot in violation of the relevant resolutions of the UnitedNations, and does not adversely affect the interests of thepeoples of those Territories.

The status of Spain as administering powerThree different stages can be distinguished in establishingSpain’s status in the Western Sahara.


Before 19 November 1975In 1961, just a few years after its admission to the UnitedNations, Spain accepted Western Sahara’s official classificationas a non-self-governing territory, ie as a colony. In 1963 Spainaccepted the inclusion of the issue on the agenda of the FourthCommission11 so becoming part of the decolonisation process inaccordance with the United Nations Charter.

The United Nations subsequently recognised Spain as theadministering power of the Western Sahara. The first UnitedNations General Assembly resolution to refer to Spain as the‘administering Power’ (puissance administrante) of the WesternSahara was resolution 2072 of 17 December 1965. Inparagraph 2 of this resolution the General Assembly urgentlyrequested ‘the Government of Spain, as the administering Power,to take immediately all necessary measures for the liberation ofthe Territories of Ifni and Spanish Sahara from colonialdomination’. Spain’s status as administering power wasconfirmed in General Assembly resolutions: 2229 (20 December1966), 2354 (19 December 1967), 2428 (27 December 1968),2591 (16 December 1969), 2711 (14 December 1970), 2983(14 December 1972) and 3162 (14 December 1973).

Between 19 November 1975 and 26 February 1976 On 14 November 1975, six days before Franco’s death, Spainsigned an Agreement with Morocco and Mauritania. Thisagreement consisted of a ‘political declaration’ transmitted to theUnited Nations and some secret annexes. The Declaration ofPrinciples between Spain, Morocco and Mauritania on theWestern Sahara Agreement12 became commonly known as theMadrid Agreement. In this agreement Spain agreed to establisha tripartite (Spain-Morocco-Mauritania) interim administration towhich all the responsibilities and powers of Spain as ‘administe-


ring power’ would be transferred. In the first paragraph of theagreement, Spain confirmed its ‘resolve to decolonize theTerritory of Western Sahara by terminating the responsibilities andpowers which it possesses over that Territory as administeringpower’. According to the second paragraph of the Agreement,Spain committed to ‘proceed forthwith to institute a temporaryadministration for the Territory’. Morocco and Mauritania wereto participate, in collaboration with the Djemaa (the assembly ofSaharawi notables/sheikhs). All responsibilities and powers ari-sing from Spain’s status as administering power over WesternSahara were transferred to these two states. It was also agreedthat two Deputy Governors nominated by Morocco and Mauri-tania should be appointed ‘to assist the Governor General of theTerritory in the performance of his function’. Finally, paragraph2 of the agreement announced that the Spanish presence inWestern Sahara would be terminated by 28 February 1976 ‘atthe latest’. The Madrid Agreement entered into force on 19November 1975, once Spain passed the law stipulated inparagraph 6.

The Madrid Agreement provoked a sharp debate in theGeneral Assembly in November 1975. As a result tworesolutions were passed, both on 10 December 1975.

United Nations General Assembly resolution 3458(A)specified Spain five times as ‘administering power’, twice in thePreamble and three times in the main text. This carried specialrelevance in that this specification was made after the MadridAgreement had been signed. In other words, in its resolution3458(A) the General Assembly disregarded the MadridAgreement insofar as it failed to acknowledge the transfer ofthe status of administering power to the tripartite entity (Spain-Morocco-Mauritania).


United Nations General Assembly resolution 3458(B) notedthe tripartite agreement but did not endorse it insofar as it reques-ted the interim administration to act differently than proposed inthe Madrid Agreement. Resolution 3458(B) requested the interimadministration not to consult only the Djemaa as the MadridAgreement provided, but to consult ‘all the Saharan populationoriginating in the territory’ and ‘to take all steps to ensure that allthe Saharan population in the territory will be able to exercise theirinalienable right to self-determination through free consultationsorganized with the assistance of a representative of the UnitedNations appointed by the Secretary-General’.13

A consideration of these two resolutions leads to theconclusion that the United Nations General Assembly did notendorse the Madrid Agreement, and that Spain was stillconsidered the administering power. United Nations GeneralAssembly resolution 3458(A) simply ignored the MadridAgreement, while resolution 3458(B), although quoting it (‘tooknote’ of it) ignored it because it requested a referendum that theMadrid Agreement did allow for. According to the UnitedNations, Spain was still to be considered the administering powerof the Western Sahara.

But there is another argument which shows that Spain,although a signatory, did not regard the Madrid Agreement void.

On 26 February 1976, Spain’s Permanent Representativeto the United Nations sent a very important letter to theSecretary General.14 It was requested that this letter bedistributed as an official document in the General Assemblyand the Security Council. The letter stated that with immediateeffect the Spanish government terminated its presence in theWestern Sahara. In this document Spain deemed it necessaryto put two statements of major relevance on record:


(a) Spain considers itself henceforth exempt from anyresponsibility of an international nature in connection withthe administration of the said Territory, in view of thecessation of its participation in the temporary administra-tion established for the Territory;

(b) the decolonization of the Western Sahara will be reachedwhen the opinion of the Saharawi population was validlyexpressed.

Neither Morocco nor Mauritania objected to the Spanishnote. This letter is an international act of extraordinary relevanceas it serves as evidence that Spain remained the ‘administeringpower’ of Western Sahara at that time. By this note, Spain notonly tried rid itself unilaterally of its responsibilities and status asadministering power, but also unilaterally re-interpreted theagreement or referred it back to the international community toestablish that the Madrid Agreement did not effect decolonisa-tion. And if statement (b) was made unilaterally by Spain, and notby the tripartite administration, and there was no protest fromMorocco and Mauritania, it is because Spain explicitly, andMorocco and Mauritania implicitly, considered that WesternSahara had not been decolonised.

After 26 February 1976From the above, there is no doubt that Western Sahara was notdecolonised through the Madrid Agreement. And this is confirmedby the fact that the issue of Western Sahara is still on the Agendaof the 4th Committee of the General Assembly. The question,then, is who was the administering power after that date?

Morocco continues to invoke the Madrid Agreement as thebasis for title to its presence in the Western Sahara as‘administering power’. As far as I could establish, this was lastdone in a letter to the Secretary-General dated 26 January2006.15 In this letter Morocco said:


As long as there is no definitive agreement on a politicalsolution, Morocco, under the Madrid Accord of 14 November1975 concluded with Spain, remains the sole competentadministrative authority [la seule autorité qui dispose descompétences d’administration in the original French] over theentire Territory of Western Sahara.

However, careful analysis of the Agreement reveals thatMorocco’s claim is highly questionable for various reasons.

First, Spain’s responsibilities and powers as administeringpower were not transferred to Morocco under the MadridAgreement but to a tripartite entity ‘in which Morocco andMauritania will participate’ alongside Spain. Consequently, itis incorrect to state that the Madrid Agreement gave Moroccoany exclusive status as administering power.

Secondly, the tripartite administration assumed not only thepowers, but also the responsibilities that corresponded to those ofSpain as administering power. The most important of theseresponsibilities, according to international law, was the task ofdecolonising the territory through a self-determination referendumas demanded by United Nations General Assembly resolutions.While this task was not included in the Madrid Agreement itself,General Assembly resolution 3458(B) mention it clearly whenreferring to the Agreement. Accordingly, the Madrid Agreementfailed to deliver one of the main responsibilities to be discharged– the holding of a self-determination referendum. One could evenargue that as the Madrid Agreement neglects this majorresponsibility of the administering power, it should be regardedinvalid.

Thirdly, it is also appropriate to recall that the tripartiteadministration was meant to be temporary (interim). Hence, bydefinition it was to wind up at the moment Spain abandonedthe territory, that is before 28 February 1976. Spain evenabandoned the territory two days earlier on 26 February 1976.


This means that after 26 February 1976 the tripartiteadministration came to an end as one of the parties was absent.The Madrid Agreement did not provide how the two remainingactors could assume the rights of the tripartite administration. Thedelegation of powers that Spain conceded to the tripartiteadministration did not provide for sub-delegations.

Consequently, after 26 February 1976 the tripartiteadministration ceased to exist and since administration was not(to be) delegated, Morocco and Mauritania were no longerco-administrators of the territory. Since 26 February 1976Morocco is neither administering power nor co-administrator.

The Treaty on the Borders between Morocco and Mauritaniafrom April 14th 197616 proceeded to the partition andannexation of Western Sahara. The partition of Western Saharais spelled out in article 1, while the annexation is established inthe article 2 (where both parties speak of ‘sovereignty’).

Both parties intended to conduct this partition andannexation:

in conformity with the Declaration of Principles, signed in Madridon November 14th 1975 which transferred to the interimadministration participated by Morocco and Mauritania with thecollaboration of the Djemaa, the responsibilities and powerswhich Spain had on the Sahara.17

However, the basis for this partition and annexation is void.The main reason is that it is made on 14 April 1976, threemonths after the termination of the interim administration on26 February 1976. This means that, from whatever legalperspective it is approached, the treaty lacked a legal basis onwhich to justify the presence of Morocco and Mauritania in theterritory after 26 February 1976.

The United Nations had clearly stated that Morocco isneither sovereign (as represented in the treaty of 14 April


1976), nor ‘administering power’ over the whole or part ofWestern Sahara. This analysis was confirmed by the law of theUnited Nations. When confronted with the question of WesternSahara after Spain had abandoned the Territory, the UnitedNations General Assembly clearly classified the presence ofMorocco in the Western Sahara as ‘continued occupation’.18

Furthermore, a letter dated 29 January 2002 from theUnited Nations Under-Secretary-General and Legal Counsel,Hans Corell, to the President of the Security Council,confirmed these conclusions as follows:

Morocco however, is not listed as the administering Power ofthe territory in the United Nations list of Non Self GoverningTerritories, and has, therefore, not transmitted information onthe territory in accordance with Articles 73 (e) of the UnitedNations Charter.19

After 26 February 1976 there is no United Nationsresolution stating that Spain is the ‘administering power’ ofWestern Sahara. However, this does not mean a lack of UnitedNations actions recognising this status. In every report by theUnited Nations Secretary-General on ‘Information from Non-Self-Governing Territories transmitted under Article 73(e) of theCharter of the United Nations’, Spain was consistently referredto as the administering power of Western Sahara.20

Moreover, the United Nations Under-Secretary-Generaland Legal Counsel, Hans Corell, also confirmed that in hisopinion Spain was the ‘administering power’ of the territory:

The Madrid Agreement did not transfer sovereignty over theterritory, nor did it confer upon any of the signatories thestatus of an administering Power, a status which Spain alonecould not have unilaterally transferred.21

However, Spain still has not completely abandoned theadministration of the territory. Spain still enjoys administering


competences in Western Sahara in two areas: airspace andsearch and rescue missions.

As far as airspace is concerned, the airspace of the WesternSahara is included in the Spanish airspace, and more preciselyin the Canary Islands Flight Information Region.22 This meansthat Morocco requires Spanish permission for flights in thisterritory. This explains why, when the Moroccan air force wishedto conduct military exercises in Western Sahara (airspace over thecoast between El Aaiun and Dakhla-Villa Cisneros), itapproached Spain for permission. The press informed thatbetween 6 September and 31 December 2004, the Spanish AirForce imposed restrictions on air traffic in this region to facilitatethe Moroccan military exercises.23

Regarding the maritime space, in the framework of theInternational Convention for the Safety of Life at Sea, theInternational Convention on Maritime Search and Rescue(signed at Hamburg 27 April 1979 and entered into force on22 June 1985) divides the international waters into various‘search and rescue regions’ (SAR regions). Certainly, the Annexto this latter treaty, establishes that ‘the delimitation of searchand rescue regions is not related to and shall not prejudice thedelimitation of any boundary between States’.24

According to the ocean atlas published by the InternationalMaritime Organisation (IMO) one of the Spanish ‘SAR regions’,that of the Canary Islands, includes the entire coastline ofWestern Sahara.25 This certainly does not incorporate WesternSahara within the Spanish borders, but it is an indication that thewaters of Western Sahara, though not under Spanish sovereignty,are also not subject to Moroccan administration.

Since the appointment of Rodriguez Zapatero as primeminister, the Spanish government has shown a radical shift in itstraditional position in that it recognised Morocco as the


administering power of Western Sahara. The Zapaterogovernment is the first Spanish government after Franco’s death,to recognise Morocco as Western Sahara's ‘administeringpower’. A number of highly placed government representativeshave repeatedly insisted that Morocco is the territory’s administe-ring power. In June 2005 Spanish Foreign Affairs Minister,Miguel Ángel Moratinos, stated as many as four times that theMadrid Agreement ‘gave Morocco its quality as administeringpower recognised by United Nations’. Statements to this effectwere made on 22 June 2005 in the Senate, on 27 June 2005during the Tele 5 channel program La Mirada Crítica, on 29June 2005 in the Spanish Congress, and on 7 August 2005 inthe city of Asilah, Morocco. In turn, Agustín Santos, ExecutiveAssessor for Parliamentary Matters at the Spanish Ministry ofForeign Affairs, alluded to the ‘Moroccan authorities, as theWestern Sahara administering power’.26

However, as far as I know, this does not mean that eitherthe airspace of Western Sahara, or the search and rescuecompetence in the waters of Western Sahara, has beentransferred to Morocco.

Spain’s legal obligations as administeringpower: Doubts and responsibilitiesThe position of Western Sahara, then, is closely akin, though notidentical, to that of East Timor. As in East Tomor, the‘administering power’ (Spain, Portugal) lost its effective dominionat least over the territorial space of the country. When the East-Timor case was argued before the International Court ofJustice,27 no one contended that Portugal was still the ‘administe-ring power’ of the colony, although, as in the Western Saharacase, no General Assembly resolution mentioned it after 1975.However, the cases do differ: in Western Sahara the occupying


power does not occupy all the territory; and the colonised peoplehave founded their own state (the SADR) which controls a part ofthe territory and is recognised by an important number of states.This special context in the case of Western Sahara, raises thequestion of Spain’s obligations as administering power and theextent to which these obligations have been honoured. As statedearlier, an administering power has two main types of obligation:political (to take immediate steps towards the independence ofthe colony) and social, economic and cultural.

Spain is firstly subject to the obligations imposed on allmember states of the United Nations, among them: toobserve, respect and promote the right of self-determination,and to maintain the separate and distinct character of WesternSahara, and to avoid any obstacle to future self-determination.But then, it also has special obligations as administeringpower. According to the General Assembly resolution 1514(XV), Spain, has an obligation to take: ‘[i]mmediate steps … totransfer all powers to the peoples of those territories, withoutany conditions or reservations, in accordance with their freelyexpressed will and desire’.

In the case of Western Sahara, the problem is that part ofthe occupied Territory and the occupying power, reject theholding of a free referendum to establish whether the peopleof Western Sahara want independence, notwithstanding thattheir right to independence has been acknowledged by boththe General Assembly and the International Court of Justicewhich saw no obstacle to the application of resolution 1514(XV) to the Western Sahara.

The question is what are Spain’s obligations in this case? Aswas stated in the letter dated 26 February 1976: ‘…(b) thedecolonization of the Western Sahara will be reached when theopinion of the Saharawi population was validly expressed’.


But what can be done if the opinion of the Saharawipopulation cannot be validly expressed? In my opinion, the rightof self-determination of a people cannot be derailed simplybecause the administering power is unable to hold a referendumto establish the freely expressed will of the whole colony. It couldbe contended that when the non-occupied part of the peopleexpresses its wish to hold the referendum, Spain will be under anobligation (and not merely a right) to recognise, even if onlyprovisionally, a state proclaimed by the people exercising theirright to independence. But, what is not contended is that, in sucha case, the United Nations has a responsibility to the people ofWestern Sahara. And certainly, the resolutions of the GeneralAssembly reaffirm this28 when they state that the GeneralAssembly reaffirms the ‘responsibility of the United Nationstowards the people of the Western Sahara’.

As in the case of political obligations, Spain is subject to theeconomic, social and educational obligations applicable to allthe members of the international community. Among these, itis important to note that:

Member States shall wage a vigorous and sustainedcampaign against activities and practices of foreigneconomic, financial and other interests operating in colonialTerritories and on behalf of colonial Powers and their allies,as these constitute a major obstacle to the achievement of thegoals embodied in resolution 1514 (XV). Member States shallconsider the adoption of necessary steps to have theirnationals and companies under their jurisdiction discontinuesuch activities and practices; these steps should also aim atpreventing the systematic influx of foreign immigrants intocolonial Territories, which disrupts the integrity and social,political and cultural unity of the peoples under colonialdomination.29


But, as administering power Spain is also subject to theseobligations. The General Assembly:

Reiterates that any administering Power that deprives the colonialpeoples of Non-Self-Governing Territories of the exercise of theirlegitimate rights over their natural resources, or subordinates therights and interests of those peoples to foreign economic andfinancial interests, violates the solemn obligations it has assumedunder the Charter of the United Nations;30

and:Urges the administering Powers concerned to take effectivemeasures to safeguard and guarantee the inalienable rightsof the peoples of the Non-Self-Governing Territories to theirnatural resources, and to establish and maintain control overthe future development of those resources, and requests theadministering Powers to take all necessary steps to protect theproperty rights of the peoples of those Territories;31

and:Calls upon the administering Powers to ensure that economicand other activities in the Non-Self-Governing Territoriesunder their administration do not adversely affect the interestsof the peoples but instead promote development, and to assistthem in the exercise of their right to self-determination;32

and:Calls upon the administering Powers to ensure that theexploitation of the marine and other natural resources in theNon-Self-Governing Territories under their administration isnot in violation of the relevant resolutions of the UnitedNations, and does not adversely affect the interests of thepeoples of those Territories.33

If the fulfilment of its political obligations by theadministering power is difficult in the context of the WesternSahara, it seems that this is not so in respect to its economicobligations. There is now an ongoing process of exploitation


of the natural resources of the Western Sahara (phosphate andfisheries). We also find the establishment of economicinitiatives by the occupying power in order to obtain benefitsfrom the sand, from agriculture, and from tourism. In all theseactivities, Spain is involved.

The maritime resources are being exploited by Morocco withthe complicity of Spain through the Fisheries Agreement signedby the European Union and Morocco.34 Spain actively lobbiedfor and voted in favour of such an agreement. The agreement:(a) included the waters of the Western Sahara; (b) those waterswere not treated separately from those of Morocco; (c) theeconomic compensation from the European Union did notbenefit the local Saharawi population; and (d) a huge majority ofthe people involved in the agreement in Western Sahara(approximately 95%) were not Saharawi citizens included as suchin the United Nations census of those eligible to take part in thereferendum on self-determination. It is very clear that thisagreement presents a major obstacle to the self-determination ofthe Western Sahara.35

As far as the phosphates are concerned, all the revenuebenefits from their exploitation accrue to a Moroccan-ownedcompany. Even if this sector represents a larger percentage ofSaharawi workers than the fisheries sector, there is no provisionreserving these jobs for the Saharawi, despite the highunemployment rate among the native population. Hence thetrade in phosphates, too, presents an obstacle to self-deter-mination. There are several foreign firms importing Saharawiphosphates, among them a Spanish firm (FMC Foret) which hasmet with no opposition from the Spanish government.

The sand is also a product imported, in the main, by Spain.Here again, benefits for the local population are unclear asMorocco fails to comply with the reporting obligation under


article 73(e) of the United Nations Charter. In the agriculturalsector, as with fisheries and phosphates, the product labellingfails to specify that the product originated in a territoryseparate and distinct from Morocco. Finally, the occupyingpower is trying to build a tourist infrastructure, but also herethere is no evidence that the revenue generated will benefit thelocal population as there appear to be no plans to employ thelocal native population officially identified by the UnitedNations as members of the Saharawi people. There are alsoSpanish firms involved in these projects.36

The problems raised by the decolonisation process inWestern Sahara present distinctive features. Although Spanishnon-compliance with its economic legal obligations as‘administering power’ is clear, its political legal obligations areless clear-cut. This is why I feel that the following questionsshould be posed by the General Assembly in a request to theInternational Court of Justice for an advisory opinion:(i) Does Spain remain the administering power of the Western

Sahara under United Nations resolutions?(ii) If so, is it obliged to hold a referendum on self-determina-

tion?(iii) If Spain cannot comply with this obligation, does the

United Nations have a corresponding obligation to hold areferendum on self-determination?

ConclusionsThree models have been formulated under international law todeal with the relationship between the coloniser and its colony:(a) the obligation to promote the well-being of the colonycompatible with its annexation; (b) the obligation to promoteits well-being and grant it independence; and (c) theobligation to grant the colony independence without delay.


The history of colonial law shows how the different modelshave been implemented. The first model was adopted in thecolonial law derived from the General Act of Berlin in 1885. Thiswas also the model in colonial law under the Covenant of theLeague of Nations, although here for the first time reference wasmade to the possibility that a people could be able to standalone. With the establishment of the United Nations, we haveseen a sea-change regarding the obligations of third parties andadministering powers. Nowadays, there is no doubt that there isa legal obligation to grant colonised peoples who freely expressthe desire, independence as soon as possible. This politicalobligation is complemented by a progressively stricter obligationto avoid any economic activity which may block the indepen-dence of a non-autonomous territory.

The legal status of Spain in the Western Sahara has seenthree different stages. During the first – until November 1975– Spain was the unquestioned de facto and de iure‘administering power’; during the second – November 1975to February 1976 – its legal position as administering powerwas blurred by a de facto and probably illegal ‘tripartiteadministration’ by Spain-Morocco-Mauritania; during the third– February 1976 to date –, Spain unilaterally abandoned itsposition as ‘administering power’, but the United Nations hasnot accepted this ‘abandonment’ and still regards Spain as thede iure administering power which continues to exercise certainde facto administrative functions.

Even if its position is principally that of a de iureadministering power, Spain has obligations, both political andeconomic, which it must fulfil. Developments on the groundshow that there have been some economic and legal issues onwhich Spain has been compelled to take a position. The bestknown of these is the fisheries agreement between the


1Brown Scott The Spanish origin of international law (1934).2De Vitoria De indis recenter inventis (1934) 119.3De Carranza Ratione fidei potest Caesar debellare et tener indos novi Orbis1540 in Pereña Vicente Misión de España en América (1956) at 38ss.4Cano De dominio indiorum in Pereña Vicente n 3 above at 90.5Id at 109.6French version in CIJ Mémoires Sahara Occidental vols I and II (Exposésécrits et documents) t II 89; Spanish original version in Diego Aguirre Historiadel Sahara Español 163.7French version of this text in CIJ Mémoires n 6 above at t II 96; Spanishoriginal version Diego Aguirre n 6 above at 164.8CIJ Mémoires n 6 above at t I 288.9East Timor (Portugal v Australia) 1995 ICJ Rep par 29.10See also art 76.b for the ‘trust territories’.11De Pinies y Rubio La Descolonización Española en Naciones Unidas (2001)91 ss.121975 United Nations Treaty Series 258.13Paragraph 4.14UN Doc A/31/56 S/11997. For the printed text, see Official Records ofthe Security Council, Thirty-first Year, Supplement for January, February andMarch 1976; Published also, in the newspaper ABC (27-II-1976) 15-16 andin De Piniés n 11 above at 809-810.15S/2006/52.161977 United Nations Treaty Series 118-119.

European Union and the Kingdom of Morocco affecting thewaters of Western Sahara. The evidence points to Spain notcomplying with its legal obligations as administering powerwith the result that it could be held responsible for the violationof its obligations under international law. The distinctcharacteristics of the case make it highly desirable that theInternational Court of Justice be approached for an advisoryopinion on how Spain (or any other administering power) canbest fulfil its political obligations vis-à-vis the Western Saharato facilitate the decolonisation of the territory.

Endnotes


17Preamble to the Treaty.18UNGA res 34/37 pars 5 and 6 of 21 November 1979 and 35/19 pars 3and 9 of 1 November 1980.19UN Doc S/2002/161 n 6 s 7.20See UN docs A 61/70 [2006] and A/62/67 [2007].21UN Doc S/2002/161 s 6.22http://www.aena.es/csee/Satellite?cid=1047658457254&pagename=subHome&SMO=1&SiteName=NavegacionAerea&Section=3&c=Page&MO=1&Language=EN_GB.23This information was published in several news: Press releases fromAgencia Canaria de Noticias-CAN (7-10-2004) [http://es.groups.yahoo.com/group/sahara-info/ message/2965], La Opinión de Tenerife (11-10-2004)[http://es.groups.yahoo.com /group/sahara-info/message/2962].24Annex par 2.1.7.25http://www.oceansatlas.com/unatlas/issues/emergencies/gmdss_sar/SARMAP.PDF.26Reference of these acts in Ruiz Miguel at 310.27East Timor (Portugal v Australia) n 9 above.28See, lately GA resolutions 58/109 [2003], 59/ 131 [2004], 60/114[2005], 61/125 ][2006], 62/116 [2007].29Resolution 2621 (XXV) 1970.30GA res 44/84 (1989).31GA res 48/46 (1994).32GA res 62/113) (2007).33Ibid.34Council Regulation (EC) No 764/2006 of 22 May 2006 on the conclusionof the Fisheries Partnership Agreement between the European Communityand the Kingdom of Morocco; OJ L141 of 29/05/2006 at 1.35Milano ‘The new Fisheries Partnership Agreement between the EuropeanCommunity and the kingdom of Morocco: Fishing too south? (2006) XXIIAnuario de Derecho Internacional 413 ss.36Further information: Western Sahara Resources Watch www.wsrw.org.

Spain’s legal obligations as administering power of Western Sahara

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