Map of Western Sahara

In a rare moment of publicity, the world’s attention was drawn to the protests of Western Sahara activists on November 8, 2010. After months of peaceful protest, Moroccan authorities reportedly attacked about 12,000 Saharwis, killing eight and wounding 700. The Saharwi, indigenous peoples from Western Sahara, were protesting the economic and social exclusion they suffered under Moroccan rule. The attack came just a few weeks before UN-mediated negotiations were scheduled to commence on the territorial status of the Western Sahara.

U.S. media has not often focused on the plight of the Saharwis, likely in part because the U.S. has long supported Morocco’s occupation of the Western Sahara – the longest territorial conflict in Africa. After emerging from the colonial control of Spain in 1966, the Western Sahara was soon occupied by neighboring Morocco. The occupation violated a 1975 UN Security Council Resolution asserting Western Sahara’s right to self-determination and disregarded an advisory opinion by the International Court of Justice (ICJ) in 1975. The ICJ opinion defined the Western Sahara as non-self-governing territory under belligerent military occupation. Since then, Morocco has negotiated several agreements regarding the territory, the most recent being the 1991 Settlement Plan (Settlement Plan) between Morocco and Polisario Front, the Sahrawi National Liberation Movement. The Settlement Plan, which UN Security Council and the U.S. endorsed, called for a referendum on Saharwi self-determination to be held in Western Sahara. To date, no definitive plans for such a referendum have emerged, largely because of Morocco’s reluctance to support steps towards self-determination. Meanwhile, Saharwi activists still angrily protest against Morocco’s occupation and policies within the Western Sahara.

The twenty years since the Settlement Plan witnessed a significant shift in the international landscape that may shed light on options for the Western Sahara, both in regards to internal and external self-declaration. International law does not contain a right to external self-declaration nor does specifically prohibit it.  As articulated by the Canadian Supreme Court in Reference re Seccession of Quebec, the right to external self-determination “arises only in the most extreme cases and, even then, under carefully defined circumstances.” The court further explained that those circumstances would need to include an environment where people are “prohibited from a meaningful exercise of self-declaration” within the state or where “a people are subject to alien subjugation, domination, or exploitation.”

In 1998, when the Canadian Supreme Court decided Reference re Seccession of Quebec, few successful examples of internal self-declaration existed. Instead, the international community repudiated numerous declarations of internal self-declaration, like that of Northern Cyprus. In terms of the Western Sahara, the precedent for unilaterally declaring independence was sparse. However, in light of recent events, the indigenous people of Western Sahara may have greater reason to hope that the international community will give deference to their claims of self-determination. In particular, the landmark advisory opinion of the ICJ in Accordance With International Law of the Unilateral Declaration of Independence in Respect of Kosovo provides the most encouraging precedent for unilateral declarations of self-determination, albeit a vague one. The ICJ was careful to make its holding extremely narrow by emphasizing the particularities of Kosovo’s recent history and the likely absence of substantial violence that would accompany self-determination, distinguishing the case of Kosovo from those of Northern Cyprus and Southern Rhodesia. Yet, although the circumstance of the Western Sahara is not identical to that of Kosovo, both states share similarities. Like Kosovo, the Western Sahara has been the subject of numerous UN resolutions and is presently not threatening violence. Additionally, in both states, access to government mechanisms and justice systems was limited. Moreover, as in the case of Kosovo, the UN and other international institutions have given more credence to Western Sahara’s claim for autonomy.

Saharwis might not have to unilaterally declare independence if Morocco follows the example of Sudan. In a highly anticipated referendum on self-determination, the people of South Sudan popularly and peacefully voted for independence on January 9, 2011. The positive and peaceful model of transition of South Sudan could provide Morocco with the impetus to revisit the idea of a referendum in the Western Sahara. While the case of South Sudan is peppered with controversy, the international community’s acceptance and support for South Sudan’s right to self-determination sets an encouraging precedent for Western Sahara.

In contrast to 1991, today the Western Sahara has more precedent to draw on in the event that a referendum is held, or autonomy is declared. Although the violent repression on November 8 delayed UN talks on the territorial status of the Western Sahara, when the talks do commence, the cases of Kosovo and Sudan will importantly highlight possible paths to self-determination for the Saharwis.