International law allows the recognition of Western Sahara

(This is a translation of the op-ed published yesterday 6 November, in Dagens Nyheter.)
Forty years ago today (6 November, 2015), Morocco initiated the “Green March” to Western Sahara. It marked the beginning of a Moroccan illegal invasion, occupation and annexation, which has continued since then with the tacit support of the United States, France and EU. For the people of Western Sahara, the Green March meant the beginning of four decades under occupation or in refugee camps.
On December 5, 2012 the Swedish Parliament decided, in a notification to the Government, that Sweden should urgently recognize the Sahrawi Arab Democratic Republic (SADR, Western Sahara). The non-Socialist government at the time left this without notice. The Social Democratic Party Congress resolved in 2009 and 2013 that Sweden should recognize not only Palestine (which happened 2014) but also Western Sahara. Currently, a review of the Swedish Western Sahara policy is under way in the Government Offices. For this reason, the Foreign Ministry was visited in early October by a Moroccan delegation, which urged Sweden not to recognize Western Sahara.
Western Sahara, which lies immediately south of Morocco, was colonized by Spain. In 1966, the UN General Assembly called upon Spain to organize a referendum to decide the future of the colony. This was in accordance with the principle of peoples’ self-determination, which guided the decolonization of Africa and Asia. General Franco’s Fascist government in Spain was, however, not interested in complying with the UN’s call.
In 1975, on the initiative of Morocco’s, the UN General Assembly requested an advisory opinion from the International Court of Justice on the status of Western Sahara at the time of colonization. To the disappointment of the Moroccans October, the Court found on 16 October no legal ties that might “affect the application of .. the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory”.
Shortly thereafter, on November 6, the “Green March” began. On the same day, the UN Security Council called on Morocco to “immediately withdraw all the participants in the march” (Resolution 380). Armed conflict ensued between Morocco and the Sahrawi liberation front Polisario, and the latter was recognized by the UN as the legitimate representative of the Sahrawi people. Mauritania joined Morocco from the south and the two states divided the territory among themselves. A few months later left Spain left Western Sahara to its fate, fully occupied with determining its political future after the death of Franco on 20 November.
In 1976 the Sahrawi Republic (SADR) was proclaimed, and it became a member of the Organisation of African Unity (now the African Union) in 1984. Mauritania renounced all claims to the area in 1979. The UN Security Council adopted a peace plan in 1991 that called for a referendum on the territory’s status. However, the plan could not be implemented, due to Morocco’s demands for voters lists that favored its grip on power. Today the government in Rabat rejects all solutions that do not mean that the area will remain under Moroccan sovereignty.
The Moroccan aggression, occupation and annexation of the territory constitute a serious violation of international law, and no state has recognized Morocco’s sovereignty over Western Sahara. Western Sahara is not a part of Morocco, and Morocco has no legal title or lawful claim on the territory. The people of Western Sahara have the right to self-determination, which in this case can be met through the establishment of a fully sovereign State, if they so wish.
A very large part of the population has fled to refugee camps in Algeria, while settlers have moved in, domestic and foreign investors have received land and rights to natural resources, and new infrastructure has been built for the needs of these newcomers. In the US think tank Freedom House’s ranking of countries in terms of democracy, occupied Western Sahara has the lowest score, 7 of 7 (1 being the best and 7 the worst) – which puts the government in Rabat in the same league as colleagues in Pyongyang and Damascus.
All states have an obligation not to recognize an illegal situation resulting from annexation and not to give support to the maintenance of such an illegal situation. Despite this, the EU has concluded a series of agreements with Morocco, among others agreements on fisheries and trade in agricultural products, which also apply to the occupied Western Sahara. This is unlike the US, which has made it clear that their bilateral free trade agreement does not include Western Sahara.
Recently, the question of whether Sweden can recognize Western Sahara has gained renewed importance.
Under international law, recognition means that the recognizing state must regard the State as a State, including that the government of the new state represents the people and the territory.
With regard to recognition, it is customary to consider whether the three criteria of territory, population and effective government (the principle of effectiveness) are met. In recent decades, there has emerged a different principle – “a right cannot arise from a wrong” (ex injuria jus non oritur). This principle, which rivals the principle of effectiveness, says that a state cannot be recognized if it is has come about in an illegal manner, for example through war or a policy of apartheid. This principle also justifies the admission of new states that do not have full control, if this lack of control is due to an illegal act by another state, such as an illegal annexation or a denial of self-determination. In 1992, Sweden recognized Croatia invoking of this principle and a little later it also recognized Bosnia Hercegovina, which also did not have full control of its territory. In 2014 Sweden recognized Palestine under similar circumstances.
Approximately 15% of the territory of Western Sahara is currently controlled by the SADR. In this area there is a functioning Sahrawi administration in a sparsely populated area. The government is living in exile in Tindouf in Algeria (just like the legitimate Norwegian government resided in London during World War II). The Sahrawi have an unequivocal right to self-determination, including the right to form their own state, if they so wish.
A state has the right to recognize a new State, unless this recognition violates the rights of another state. As mentioned above, Morocco not only has the obligation to respect the right to self-determination in Western Sahara, it also has to terminate its annexation and occupation of Western Sahara. Morocco has no right to this area.
All this gives the following result: The Saharawis have a state that would have been effective had it not been for Morocco’s illegal occupation. Morocco has no international legal right that can be violated by the formation and recognition of a Sahrawi state in the occupied territories. Western Sahara can therefore be recognized if the Swedish government would find it suitable.
Pål Wrange, Professor of Law, Stockholm University
Ove Bring, Professor Emeritus of International Law
Said Mahmoudi, Professor of International Law, University of Stockholm

Open letter to the governments of Saudi Arabia, India and Nepal

Two Nepalese women were rescued on 9 September 2015 by the Indian police from a Saudi diplomat’s flat in Gurgaon, India. The rescued victims – aged 44 years and 20 years – were, according to the media, held against their will in the Saudi diplomat’s residence for months, denied food and water, beaten and repeatedly raped. According to investigations by the Indian police, the Saudi diplomat had imprisoned and repeatedly raped the maids who worked in his home. Findings of the medical tests, performed twice in India, establish a credible case against the Saudi diplomat and the reports provide strong proof of the brutality that the two had to suffer. The accused diplomat was called back home by the Saudi government to Saudi Arabia on 17 September, 2015, under the shield of diplomatic immunity.
We believe that, if the alleged facts are correct, the case is a serious violation of human rights, for which the government of Saudi Arabia bears main responsibility, since the diplomat was in the service of the Saudi government. The case would also constitute a violation of Saudi Arabia’s obligation to ensure that its diplomats respect the local laws in India. Diplomatic immunities must be upheld but they should not be abused to protect officials who are guilty of violations of human rights.
The Saudi government should allow the accused diplomat to be questioned by the Indian authorities and should either lift the immunity and allow prosecution in India or investigate the matter in good faith in Saudi Arabia under full transparency to Nepal, India and other interested parties. The victims must be paid appropriate compensation. The Nepalese and Indian governments, which both have legal interests and legal responsibilities in the matter, should cooperate in order to ensure justice for the two women.
We further believe that the situation of migrant workers, not least domestic workers, deserves increased attention both from governments and from international civil society.

Said Mahmoudi, Professor of International Law
Pål Wrange, Professor of International Law
Katak Malla, Lecturer in International Law
Martin Ratcovich, Doctoral Student in International Law

Op-ed: A Swedish recognition of Palestine will be justified under international law

Today the Swedish government recognized Palestine. This is an English translation of an op-ed published in the largest Swedish morning paper, Dagens Nyheter, on October 20th, which supports this decision. ( The content of this and other blog posts by SCILJ members contain the private views of the authors and do not reflect an institutional policy of SCILJ or of Stockholm University.

In the statement of government policy (3 October), the new Prime Minister of Sweden, Stefan Löfven, said that the conflict between Israel and Palestine can only be solved through a two-state solution, “negotiated in accordance with the principles of international law,” and that Sweden “will recognize the State of Palestine.”
What does this mean from an international law perspective? May Sweden recognize Palestine? What does “in accordance with the principles of international law” mean?

Sweden already has extensive relations with Palestine. Development cooperation with the Palestinian Authority is carried out by agreement with the PLO. Palestine has a mission in Stockholm, which is included on the diplomatic list in Stockholm and headed by an ambassador. Sweden voted yes when Palestine, on November 29, 2012, received the status of “non-member observer state” at the UN, which logically seems to mean that Sweden already then regarded that Palestine was a state. To formally recognize Palestine would therefore not be a gigantic step, albeit one with significance.

Recognition is a political act, which has consequences under international law. It means that the recognizing state must hereinafter treat the recognized entity as a state. A state may recognize a new entity as a state, unless such recognition violates the rights of another state; an unjustified recognition may constitute an intervention into another state’s internal affairs and its right to territorial integrity, if the new state was previously a part of that other State. (For example, this is what Serbia claims regarding the recognition of Kosovo by Sweden and other states.)

Before recognizing a new state, one will generally consider whether the three criteria of a more or less defined territory, a population and an effective government are met (the principle of effectiveness). In recent decades, however, there has emerged a different principle, namely “an illegal act cannot produce legal rights ” (ex injuria jus non oritur) – which we may call a principle of justice. This principle, which may prevail over the principle of effectiveness, means that a state cannot be recognized if it has come about in violation of international law, e.g. through war or through apartheid policy. This principle has also justified the recognition of new states which have not had full control, if this lack of control has been due to a violation of international law by another state, such as an annexation or a denial of self-determination. Sweden recognized Croatia in 1992 with reference to this principle. The Croatian government then lacked full control over its territory due to military operations by the Yugoslav army.

How do these principles apply to the case of Palestine? In both the West Bank and Gaza there is functioning administration (PA and Hamas, respectively), and Hamas and Fatah are now negotiating to bring about a unified Palestinian government. However, the PA does not have military control over the West Bank, because of the Israeli occupation, including the Wall and numerous restrictions. This is where the principle of justice sets in.
The Palestinians have a right to self-determination, and this can lead to the formation of an independent state. IN 1974, the UN General Assembly solemnly declared “the Palestinian people’s inalienable rights”, including the right to self-determination, national independence and sovereignty. This right has been recognized by virtually all countries, and was confirmed by the International Court of Justice in 2004. Based on this right, the Palestinians want to be recognized as a state of their own within the 1967 borders, that is Gaza, the West Bank and East Jerusalem; however, they are willing to swap areas to allow some Israeli settlements to end up in Israel.

Does Israel have a conflicting right to these areas? East Jerusalem was annexed in 1980 and is thus, according to Israeli law, a part of Israel, but the annexation was declared illegal by the Security Council (resolution 478) and is not recognized by any other state. Other parts of the West Bank and Gaza are not annexed, although Israel has clearly stated that it desires to include at least part of the West Bank, including the sprawling suburbs of Jerusalem, and parts of the Jordan Valley.

Israel has no right to any of these areas. Regardless of whether the Six-Day War of 1967 was an Israeli war of defense or not, territory may not be annexed through the use of force. This has been made clear in the UN’s famous Friendly Relations Declaration of 1970, as well as in UN Security Council Resolution 242 on the Middle East in 1967.

Furthermore, Israel has no right to occupy these areas. During and after an armed conflict, a State may temporarily occupy an area. However, it may not alter the occupied area, e.g. by introducing its own population. Even occupations that are legal – like the Allied occupation of Germany in 1945 – must cease some day, under international law. If the Six-Day War in 1967 was a defensive war by Israel – and we need not settle that issue here – the subsequent occupation was lawful for some time. But we can safely say that the occupation is illegal today, and that it has been so for several decades. Israel’s creeping annexation through the ever-expanding settlements and the Wall/barrier only makes matters worse.

Many people believe that recognition must wait until an agreement has been negotiated between the parties. However, to be pro-peace and pro-negotiations, means nothing if one does not specify the conditions for peace. It is therefore important, as stated in the Swedish government declaration, that a two-state solution must be negotiated “in accordance with the principles of international law.” Since Israel has no right to the territories occupied in 1967, these areas must be ceded. Any changes in these borders – like land swaps — must be made fully voluntarily by the Palestinians. A Palestinian delegation that insists on the 1967 borders can possibly be accused of not fully understanding the military and political realities in the region, but it cannot be blamed for not being willing to negotiate, because it has good support in international law. Israel, by contrast, wants to keep Jerusalem including suburbs well into the West Bank and most of the other settlements and also areas in the Jordan Valley. Israel wants peace but only on conditions that are unreasonable under international law.

Some commentators allege that attempts to formally establish a Palestinian state are contrary to the Oslo Accords. Both parties have violated these agreements repeatedly, and Israel has done so throughout, with its consistent and continuous settlement policy, which makes a negotiated settlement more difficult by the day.
All of this yields the following result: The Palestinians have a state that would have been effective, if it were not for Israel’s illegal occupation. Israel has no international legal right that can be violated by the formation of a Palestinian state in the occupied territories or by the recognition of such a state. Palestine should thus be recognized.

Pål Wrange
Professor of International Law, Stockholm University
Former Principal Legal Advisor of Public International Law at the Swedish Ministry for Foreign Affairs

Ove Bring
Professor emeritus of International Law, Stockholm University, Uppsala University and National Defence College
Former Principal Legal Advisor of Public International Law at the Swedish Ministry for Foreign Affairs

Said Mahmoudi
Professor of International Law, Stockholm University