Toward a Settlement Consistent with International Law in Western Sahara: Normative Framework, Diagnosis, and Operational Alternatives

Abstract — This article examines, in light of international law and United Nations practice, legally compliant pathways for resolving the Western Sahara question. After outlining the applicable framework (UN Charter, GA Resolutions 1514 (XV) and 1541 (XV), the 1975 ICJ Advisory Opinion, the Territory’s non‑self‑governing status, and MINURSO’s mandate), it situates Morocco’s 2007 Autonomy Initiative and explains why, in its current form, it does not fully satisfy the requirements of free and genuine self‑determination. It then proposes alternatives compatible with international law: a UN‑supervised referendum offering all final‑status options; a transition package providing security and human‑rights guarantees; an interim resource‑governance regime based on the consent of the Sahrawi people; and confidence‑building measures. The precedents of Namibia and Timor‑Leste are used to illustrate credible transitional architectures.

1) Introduction

Western Sahara remains among the last outstanding decolonization files on the UN agenda. Since 1963 the Territory has been listed as non‑self‑governing, and its final status must result from the Sahrawi people’s exercise of the right to self‑determination in a process free of coercion and with appropriate international supervision.

In April 2007, Morocco submitted an “Initiative for Negotiating an Autonomy Statute,” framing talks “within the framework of the sovereignty of the Kingdom and its national unity,” and envisaging a referendum to approve the negotiated statute. While politically significant, this offer raises legal concerns when measured against UN decolonization standards, which require a choice among multiple final‑status options, including independence.

2) The Applicable Legal Framework

2.1) Foundational norms of self‑determination

The UN Charter recognizes peoples’ right to self‑determination. GA Resolution 1514 (XV) mandates ending colonialism through a free choice of political status, while Resolution 1541 (XV) identifies lawful outcomes of decolonization—independence, free association/union, or integration—provided the will of the people is expressed through democratic processes, where necessary under UN supervision.

2.2) The 1975 ICJ Advisory Opinion

On 16 October 1975, the ICJ concluded that although historical ties of allegiance existed between the Sultan of Morocco and some tribes, these did not amount to territorial sovereignty that would preclude the application of Resolution 1514 (XV) to Western Sahara; decolonization must therefore proceed by self‑determination through the free and genuine expression of the Sahrawi will.

2.3) UN status of the Territory and MINURSO’s mandate

Western Sahara remains on the UN list of non‑self‑governing territories. In 1991, the Security Council established MINURSO (Resolution 690) to monitor the cease‑fire and organize a referendum enabling the Sahrawis to choose between independence and integration with Morocco. The Council has repeatedly renewed the mandate (most recently Resolution 2756 (2024)) while reaffirming pursuit of a “just, lasting and mutually acceptable” political solution that provides for self‑determination of the Sahrawi people.

2.4) Natural resources and the consent principle

EU case‑law has strengthened the requirement of consent by the Sahrawi people for applying agreements to this non‑self‑governing territory. The Court of Justice (4 October 2024) upheld the annulment of EU Council decisions extending EU‑Morocco trade and fisheries regimes to Western Sahara for lack of Sahrawi consent, and reiterated the Territory’s “separate and distinct” status from Morocco.

This aligns with the UN Legal Counsel’s 2002 letter (the “Corell opinion”), which stated that exploitation of natural resources in a non‑self‑governing territory must be carried out in accordance with the interests and wishes of its people.

3) Diagnosis: Why the 2007 Autonomy Initiative is Legally Insufficient

The initiative places negotiations within Moroccan sovereignty, reserves core sovereign functions (defence, foreign affairs, national judicial order) to the central state, and envisages a referendum to ratify a single negotiated statute, not a self‑determination vote offering multiple options (independence, integration, free association/robust autonomy). This presupposition of sovereignty narrows the choice set and sits uneasily with Resolutions 1514/1541 and UN decolonization practice.

Moreover, so long as Western Sahara retains its non‑self‑governing status, any incorporation into international economic arrangements requires the Sahrawi people’s consent—precisely what the CJEU confirmed in 2024.

4) International‑Law‑Compliant Alternatives: Options and Mechanisms

4.1) A UN‑supervised self‑determination referendum (the anchor option)

Design. MINURSO (reinforced) should organize a ballot that presents all final‑status options—independence, integration, and free association/advanced autonomy—ensures registration and participation of eligible voters (including the diaspora), and secures the process with a robust international presence. This aligns with MINURSO’s original mandate as endorsed by the Council.

Legal bases. GA Resolutions 1514 and 1541; ICJ 1975 Advisory Opinion; the Territory’s non‑self‑governing status.

4.2) A strengthened transition with guarantees (the transition package)

Transitional administration. Subject to party consent, establish a UN‑coordinated transitional phase to rebuild confidence, manage security, enable refugee return, conduct demining, and complete voter identification—drawing on the models of Timor‑Leste (UNAMET/UNTAET) and Namibia (UNTAG).

Human‑rights pillar. Add an explicit human‑rights component to MINURSO’s mandate (OHCHR access, independent monitoring), consistent with the trajectory signaled by Resolution 2756 (2024).

Security and DDR. Launch a UN‑led disarmament, demobilization and reintegration (DDR) program; guarantee freedoms of expression and movement; and secure campaigning and polling with international police/military observers—functions compatible with MINURSO’s framework and past UN practice.

4.3) Resource governance based on consent

Principle. Pending final status, suspend new contracts that lack Sahrawi consent; create an independent escrow/trust mechanism to ensure that any current revenues demonstrate specific, tangible, and verifiable benefits to the Sahrawi people. This operationalizes the CJEU’s 2024 standard and the Corell opinion’s rationale.

4.4) Confidence‑building measures and regional inclusion

CBMs. Resume family‑reunion visits, communications links, and neutral civic education with MINURSO/UNHCR logistical support, as contemplated in the mission’s remit.

Regional format. Continue UN‑facilitated round‑table talks among Morocco, the Frente POLISARIO, Algeria and Mauritania, without preconditions on final status, as encouraged by SCR 2756 (2024).

5) Lessons from Precedents

5.1) Timor‑Leste (1999–2002)

On 30 August 1999, the UN organized a popular consultation offering “special autonomy within Indonesia” versus independence; the overwhelming rejection of autonomy led to a UN transitional administration (UNTAET) until independence in 2002. The referendum + transition + institution‑building matrix offers transferable insights for Western Sahara with appropriate tailoring.

5.2) Namibia (1989–1990)

UNTAG supervised the cease‑fire, refugee return, and constituent elections, culminating in independence on 21 March 1990. The case illustrates how a clear UN mandate (Resolution 435 (1978), followed by 629 (1989)) can convert long‑standing stalemate into an orderly exit pathway.

6) An Implementation Roadmap (concise proposal)

1. Procedural framework agreement under UN auspices: parties commit to a solution consistent with self‑determination without prejudice to final status; adopt an 18–24‑month timeline.
2. Reinforce MINURSO’s mandate and resources: add a human‑rights component (OHCHR access), expand monitoring capacity, and explicitly task voter identification including the diaspora.
3. Interim resources regime: freeze non‑compliant new contracts; create an independent trust fund to channel documented, verifiable benefits to the Sahrawi people pending the vote.
4. Security arrangements: DDR program; safeguards for civil liberties; international media/observer access; secure campaigns and polling sites.
5. The referendum (multiple options) under UN supervision: ballot offering independence/integration/free association/advanced autonomy; equal campaign conditions; administrative neutrality; international observation; results proclaimed by the UN.
6. Implementing the outcome: if independence—post‑referendum assistance (UNMISET‑type); if free association/autonomy—an international agreement specifying competences, guarantees, and dispute‑settlement mechanisms.

7) Addressing Common Objections

“Realism” vs. self‑determination. Recent Security Council texts refer to a “realistic” and “mutually acceptable” solution, but also insist that it must provide for the Sahrawis’ self‑determination. Mutual acceptability cannot displace the requirement of a free choice on status.

Electorate and refugees. The franchise must target the people of Western Sahara—including refugees—rather than the resident “population.” The CJEU (2024) underscored this distinction when discussing “consent.” Well‑tested modalities (external registration, observation) are available.

“Benefits” without consent. The argument that economic “benefits” can substitute for consent has been rejected in EU case‑law; consent is the condition, not ex post utility—consistent with the Corell opinion.

8) Conclusion

From an international‑law perspective, the controlling imperative is the effective implementation of the Sahrawi people’s right to self‑determination. The UN instruments—GA Resolutions 1514/1541, the 1975 ICJ opinion, non‑self‑governing status, and MINURSO’s mandate—point to a clear pathway: a referendum offering all final‑status options, backed by a security‑ and rights‑anchored transition and by resource governance centered on consent. Morocco’s autonomy initiative records a notable political opening, but by presuming sovereignty and narrowing the choice set, it does not, in its current form, meet UN decolonization standards. A package oriented around a free referendum and structured transition is the alternative most consistent with international law and most conducive to durable peace.

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By Belgacem Merbah

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Selected Sources 

• UN / Primary norms and resolutions: GA Res. 1514 (XV); GA Res. 1541 (XV); UN list of non‑self‑governing territories (Secretariat); SC Res. 690 (1991); SC Res. 2756 (2024); MINURSO mandate page.
• ICJ: Western Sahara, Advisory Opinion, 16 Oct. 1975.
• Moroccan document: “Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region” (S/2007/206).
• EU case‑law: General Court, 29 Sept. 2021 (T‑279/19); CJEU, 4 Oct. 2024 (press release).
• UN Legal Counsel on resources: Hans Corell letter to the Security Council, S/2002/161.
• Transition precedents: Timor‑Leste (UNAMET/UNTAET); Namibia (UNTAG).