Upholding international law, safeguarding self-determination and preserving the United Nations’ responsibility
European Lawyers for Democracy and Human Rights expresses its profound concern at the failure of the United Nations Security Council to reach an agreement on the renewal of the mandate of the United Nations Mission for the Referendum in Western Sahara (MINURSO).
The inability of the Security Council to ensure the continuity of the United Nations presence in Western Sahara represents a serious setback for international efforts to maintain peace, facilitate dialogue and advance a just and lasting settlement of a conflict that has remained unresolved for more than five decades.
The present impasse cannot be understood merely as the consequence of divisions among members of the Security Council. It also raises fundamental concerns about attempts to reinterpret, dilute or circumvent established principles of international law in pursuit of political objectives, particularly the inalienable right of the Sahrawi people to self-determination.
The responsibility of the Security Council is not to reshape fundamental principles of international law to accommodate political preferences, but to facilitate a peaceful settlement consistent with those principles and with the freely expressed will of the Sahrawi people.
Western Sahara remains a Non-Self-Governing Territory under the United Nations framework. Its decolonisation remains unfinished, and the right of its people to self-determination continues to constitute the essential legal foundation of any legitimate settlement.
As established by the International Court of Justice in its Advisory Opinion of 16 October 1975, the historical ties examined by the Court did not establish territorial sovereignty capable of overriding the application of the principle of self-determination through the free and genuine expression of the will of the people of Western Sahara.
Against this background, our Association emphasises the following:
1. The primacy of international law and the right to self-determination
Any lasting solution to the question of Western Sahara must be firmly grounded in the Charter of the United Nations, the principles governing decolonisation and the right of peoples to self-determination.
Political negotiations are indispensable, but they cannot be used to replace, circumvent or progressively erode fundamental legal principles.
The search for a mutually acceptable political solution must not become a means of predetermining the final status of the territory or depriving the Sahrawi people of the genuine and effective exercise of their right to self-determination.
International law must provide the framework within which political negotiations take place, rather than becoming an obstacle to be adjusted or set aside in order to accommodate a particular political outcome.
2. The urgent need to preserve MINURSO
We call upon all members of the Security Council, and particularly its permanent members, to overcome the present impasse and urgently agree on the continuation of MINURSO’s mandate.
The continued presence of the United Nations remains essential to monitoring the security situation, preventing further escalation, maintaining channels of communication and preserving conditions conducive to a peaceful settlement.
The failure to reach agreement on the political direction of the peace process must not result in the dismantling of international mechanisms established to preserve peace and facilitate the exercise of the right to self-determination.
We therefore call for an immediate technical extension of MINURSO’s existing mandate, without prejudice to the respective positions of the parties or to the final status of Western Sahara.
The preservation of the United Nations presence should be treated as a shared responsibility, rather than as an instrument of political bargaining.
3. Genuine negotiations within the framework of international law
We call upon Morocco and the Frente POLISARIO to resume meaningful negotiations under the auspices of the United Nations Secretary-General and his Personal Envoy, with the appropriate involvement of neighbouring States.
Such negotiations must be conducted in good faith, without preconditions that predetermine their outcome, and in full respect of the principles of international law, including the right of the Sahrawi people to self-determination.
A negotiated settlement can only achieve lasting legitimacy if it is consistent with international legality and reflects the freely expressed will of the people concerned.
Political realism cannot justify the abandonment of legal principles, just as adherence to those principles must not preclude genuine diplomatic engagement.
4. The responsibility of third States and the international community
We urge all United Nations Member States, particularly those exercising significant diplomatic influence, not to disengage from their responsibilities concerning Western Sahara.
The present deadlock must not become a justification for political abandonment, the weakening of international supervision or acquiescence in a situation of unresolved decolonisation.
Third States must ensure that their diplomatic, political and economic conduct remains consistent with their obligations under international law, including those arising from the right of peoples to self-determination.
In particular, States should refrain from actions that could undermine the exercise of that right or prejudge the final status of the territory contrary to applicable international law.
The responsibility to uphold international law does not disappear when the Security Council is unable to reach agreement.
5. The continuing responsibility of the United Nations
The inability of the Security Council to adopt a resolution does not extinguish the responsibility of the United Nations towards Western Sahara and its people.
The Secretary-General, the General Assembly and other competent United Nations bodies must continue to exercise their respective responsibilities in accordance with the Charter.
Should the present deadlock persist, the General Assembly should consider appropriate initiatives within its competence to preserve international engagement, support the peaceful settlement of the dispute and ensure continued respect for the legal framework governing the decolonisation of Western Sahara.
Such initiatives may include seeking further clarification of the legal consequences arising from the prolonged continuation of the present situation, through the mechanisms provided by the Charter of the United Nations and the Statute of the International Court of Justice.
6. The protection of human rights and civilian populations
Respect for international human rights law and applicable international humanitarian law must remain central to any political process.
All parties must ensure the protection of civilians, respect fundamental freedoms and facilitate independent and credible international human rights monitoring.
Particular attention must be paid to the situation of the Sahrawi living in the territory occupied by Morocco, the protection of their human rights, and the humanitarian consequences of any deterioration in regional security. The protection of fundamental rights cannot be postponed until a final political settlement is achieved.
FINAL APPEAL
Western Sahara must not become a casualty of political attempts to reinterpret, dilute or circumvent established principles of international law, particularly the inalienable right of the Sahrawi people to self-determination.
The present crisis must not be allowed to transform a failure of diplomatic agreement into a further weakening of the international legal framework governing the question of Western Sahara.
The Security Council’s responsibility is not to reshape fundamental principles of international law to accommodate political preferences, but to facilitate a peaceful settlement consistent with those principles and with the freely expressed will of the Sahrawi people.
We therefore call upon:
- The United Nations Security Council to act without delay to preserve MINURSO and ensure the continuity of the United Nations presence in Western Sahara.
- Morocco and the Frente POLISARIO to resume genuine negotiations in good faith, within the framework of international law and respect for the right to self-determination.
- All United Nations Member States to remain actively engaged, uphold their international legal obligations and support a peaceful, just and lasting settlement.
- The United Nations Secretary-General and the General Assembly to continue exercising their respective responsibilities to prevent the present impasse from undermining the United Nations’ commitment to the decolonisation of Western Sahara.
International law must remain the foundation of peace, not a variable to be adjusted to political convenience.
A lasting settlement of the question of Western Sahara cannot be achieved by circumventing the right to self-determination, but only through its full and effective respect.