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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

Commission to write a report on historical mass atrocities // Uppdrag att skriva rapport om historiska massövergrepp

(English translation after the Swedish text)
Stockholm Center of International Law and Justice (SCILJ) ingick i slutet av juni ett avtal med det svenska utrikesdepartementet (UD) enligt vilket SCILJ, genom Pål Wrange, ska avge en rapport om förhållningssätt och benämningar i anslutning till historiska massövergrepp. Rapporten, som ska omfatta ca 25-35 sidor, ska lämnas vid årsskiftet, och under arbetet ska Wrange konsultera olika experter. I avtalet beskrivs uppdraget på följande sätt:
Användningar av olika beskrivningar och benämningar av massövergrepp och liknande händelser utomlands och långt tillbaka i tiden är omgärdade av en rad principiella frågeställningar, vilka regeringen önskar få ytterligare belysta. Stockholm Centre for International Law and Justice vid Stockholms universitet ges därför i uppdrag att – på principiell nivå – undersöka för UD relevanta rättsliga, historiska och andra aspekter på förhållningssätt och benämningar i anslutning till historiska massövergrepp. Leverantören ska även beakta andra staters förhållningssätt i sådana frågor.

Det är viktigt att betona att det i uppdraget inte ingår att bedöma vad som skett under olika historiska skeden, vem som kan vara ansvarig för eventuella övergrepp under sådana skeenden eller hur de ska benämnas. Historien är tyvärr full av massövergrepp av olika storleksordning och resonemangen i den efterfrågade rapporten ska ha generell tillämpning.

Eventuella frågor kan riktas till professor Pål Wrange, pal.wrange@juridicum.su.se.

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In June this year, Stockholm Center for International Law and Justice (SCILJ) concluded an agreement with the Swedish Ministry for Foreign Affairs (MFA) under which SCILJ, through its director Pål Wrange, is to submit a report on approaches and terms related to historic mass atrocities. The report, which should be about 25-35 pages, will be submitted at the end of the year. During his work, Wrange should consult various experts. The agreement described the mission as follows (SCILJ’s translation):
The uses of different descriptions and terms for mass atrocities and similar events that have taken place abroad and far back in time are surrounded by a number of questions of principle, which the Government wishes to have further illuminated. Stockholm Centre for International Law and Justice at University of Stockholm is therefore commissioned to examine legal, historical and other aspects to the approach and terms related to historic mass atrocities which are relevant for the MFA, in principled terms. The provider must also take into account other countries’ attitude in such matters.

It is important to emphasize that the mandate does not include assessments of what has happened during different episodes of history, of who can be responsible for any abuse during those events or of how any such atrocities should be termed. Unfortunately, history is full of mass atrocities of different magnitude, and the reasoning of the requested report should have general application.

Questions can be directed to Professor Pål Wrange, pal.wrange@juridicum.su.se.