Annual Survey of International & Comparative Law


Pamela Epstein


This paper's central objective is to highlight, through a critical assessment of the conflict, a compelling case for the independent State of Western Sahara. Part I provides a snapshot of the conflict from the time of Spanish colonial rule, paying particular attention to the International Court of Justice Advisory Opinion on Western Sahara, the Moroccan invasion and subsequent illegal occupation of Western Sahara, the U.N. attempted referendum under MINURSO, concluding with the most recent extension of the U.N. mandate. Part II articulates the argument for statehood by evaluating Western Sahara's claims under the binding authority of the 1933 Montevideo Convention on the Rights and Duties of States (hereinafter "Montevideo Convention"). Part III discusses the legal principle of self-determination. The normative evolution of this principle is highlighted through a historical accounting of its American origins with Thomas Jefferson and Woodrow Wilson to the current customary international law principle as defined by U.N. resolution 1514 (XV). This section will bring to light the irony that, while the U.N. supported the granting of a fully independent East Timor to its people, there is a clear attempt to adopt a completely different and contradictory approach to an identical situation in Western Sahara. Part III concludes with a discussion of the normative progression of the right to self-determination, highlighting the incorporation of a human rights component as demonstrated by Kosovo's declaration as an independent state, as well as the right to natural resources. Part IV seeks to expose the role power politics has played in the thirty-plus year delay of the U.N. mandated referendum. This section will critically examine the ineffective role the U.N. Security Council has played in resolving the conflict, focusing on the actions of France and the U.S. Part V dissects the 2007 Autonomy Plan (hereinafter the "Plan") offered by Morocco and the continued failure to recognize the Saharawi's people's right to self-determination in a fair, free, and democratic manner. If any other solution besides this fundamental tenant of international and human rights law is utilized, it will only lead to further instability and conflict in the region, which may ignite a catastrophic spark that could potentially lead to a third world war. Finally, this paper will conclude with a policy argument for the use of Chapter 7 powers by the U.N. Security Council.