14N: The Madrid Tripartite Agreements
Nearly 50 years have passed since Spain signed the agreements that ended its occupation of Western Sahara; here, we highlight its bright spots and shed light on its dark corners.
"Los Acuerdos Tripartitos" Walad Aawah
On November 14, 1975, The Madrid Tripartite Agreements were signed between the Spanish (Carlos Arias Navarro), the Moroccan (Ahmed Osman), and the Mauritanian (Hamdi Ould Mouknass) governments with the intention that Spain would transfer the administration of Western Sahara to these two countries.
Under this declaration, Spain would proceed "immediately to institute a temporary administration in the territory, in which Morocco and Mauritania will participate in collaboration with the Yema'a and to which the responsibilities and powers will be handed". This agreement concluded by indicating that " "before February 28, 1976, the Spanish presence in the territory will be officially ended". Indeed, on February 26, 1976, the last Spanish military soldiers departed the Sahrawi territories. The Spanish Government then informed the UN Secretary-General that it was ending its presence in Western Sahara and distancing itself from any international obligations since Morocco and Mauritania would administer the territory until the referendum being held.
Thanks to the magazine Interviú (26 January–1 February 1978, pp. 14–17), it was discovered that in addition to the agreements made public, secret agreements were also signed dealing with fishing licences, phosphate exploitation, public and private goods, abandonment of airspace, the sea, and communications. According to several documents, the magazine was judicially dismissed because of the publication of the content of these charters.
These agreements were sold as the best solution to an unavoidable situation and were never published in the Official Gazette (BOE). However, on April 14, 1976, the territorial division was published in the Official Gazette of the Government of Morocco.
On April 21, 1961, Western Sahara, a former Spanish colony, officially became Spain's 53rd province with the publication of Law 8/1961 in the BOE. This was accomplished soon after the United Nations determined that Western Sahara was a colony and had the right to independence from the administering power. Following this transformation, in 1965, the UN passed a new resolution on the Spanish Sahara. Spain was required to immediately adopt all measures necessary to liberate Ifni and Spanish Sahara territories from its colonial rule. Spain agreed to hold the referendum and pledged to do so in a communiqué sent to the UN in the summer of 1974.
On October 20, 1975, a law for the decolonization of the Spanish Sahara was submitted to the courts. On November 2, Prince Juan Carlos visited Laayoune and declared that Spain would "fulfil its promises" and hold the referendum on self-determination required by UN resolutions. This was defended by Spanish diplomacy at the United Nations, where international law was upheld, and they worked to show that neither Mauritania nor Morocco had a historical link of sovereignty over the territory, as was affirmed by the Hague Tribunal on October 16, 1976.
All Agreed Upon
Afterward, when the minister Carro defended himself in front of the courts, it became known that the surrender of Western Sahara had already been signed. At the same time, the decolonization law was being debated because of the accusation that he had committed himself to Morocco in the cession of the territory. Furthermore, when the accords were made public, it was stressed that sovereignty was not transferred but rather placed under a temporary administration that would exist before the referendum that the parties had agreed to hold.
The Green March was also agreed upon with Morocco. Prince Juan Carlos informed the White House that he would turn over Western Sahara to Morocco rather than risk the potential military clashes that an invasion might bring. He also permitted a symbolic march that would cross the established borders. After the Green March, Luis Rodriguez de Viguri and Gil declared that Spain's interests had prevailed in the "decolonization," hoping that this would prevent an invasion of Ceuta and Melilla.
It aimed to harmonize the Decolonization Law and the Madrid Agreements, using Spain's advantages as justification and the turbulent events that followed the dictator's death as an excuse. Thus, in February 1976, Spain considered itself detached from all responsibility as an administering power.
Possible Benefits And Interests
International pressure, which demanded a referendum, forced Spain to formulate an autonomy system that was never approved. Although a significant part of the administration advocated for upholding international law and carrying out its obligations as a Spanish power, Morocco always had sympathisers in its efforts to expand its territory beyond its borders. Politicians such as Arias Navarro or José Solís, as well as companies and media outlets like Grupo Fierro, Rumasa, the magazine Blanco y Negro, or ABC, were always inclined toward a closer relationship with the southern neighbor. However, they did so in secret and behind the governments' backs. The government believed it would be unworthy to hand over the territory to Morocco, in addition to foreseeing that it could have negative consequences in the future.
Over time, it became clear that Morocco would not fulfill many of the promises made to Spain, including those related to fisheries, other economic issues, and the "historical" assertion that Ceuta and Melilla were part of Spain's territorial integrity. Gradually, Morocco was downgrading what had been agreed on until it reached the current situation, in which the territorial waters of the Canary Islands are still expected to be determined.
Although Hassan II spoke to the Sahrawis as "a king whose promise of submission still can't go over on heads," the United Nations Court of Justice ruling was clear. The elements and information brought to the court's attention indicate that during the period of Spanish colonialism, there were legal links of subordination between the Sultan of Morocco and some tribes inhabiting the territory of Western Sahara. On the other hand, the court concluded that there was no connection between the territory of Western Sahara and either the Kingdom of Morocco or the Mauritanian Council regarding territorial sovereignty based on the evidence and information at its disposal. As a result, it was decided that any connections that might have existed did not, in any case, require the Sahrawi people's right to self-determination. This was somewhat of a setback for Spain, which had anticipated that the decision would go in Morocco's favor so it could ignore its responsibilities.
Despite this, the Moroccan king claimed that the court had justified his requests and, with support from France and the United States, announced the Green March, an invasion of more than 350,000 people, including military personnel and civilians.
United Nations and The African Union
Kurt Waldheim, Secretary General of the United Nations between 1972 and 1981, created a road map (which was never published in any official document) to end the conflict when he served as Secretary General of the UN. It included the cancellation of the Green March, the withdrawal of the territory by Spain before January 1, 1976, and the fact that there was an interim authority of the UN until it was time to conduct the referendum. Despite Kissinger's efforts to accept this plan (whose contradictions will have a specific place), Morocco rejected it and insisted on making agreements with Madrid without consulting the UN.
The Spanish representatives to the UN have always been in line with international law, favoring the referendum on self-determination. Following the Madrid Accords, the UN Assembly adopted two resolutions in response to the Madrid Accords: resolution 3458A, which refers to Spain as the "administering power of Western Sahara," and resolution 3458B, which "takes note" of the agreement. Both resolutions confirm the "inalienable right of the people of Western Sahara to self-determination and independence, and the right to be exercised under the auspices of the United Nations." At the time, Abdelaziz Bouteflika served as Algeria's foreign minister. In a letter, he denounced the parties for accepting the division of Western Sahara's land. He charged them with breaking the UN Charter and "coming within the framework of the policy of invasion and fait accompli."
On January 29, 2002, Hans Corell, the UN legal advisor in charge of administering the referendum, issued a decision stating that Spain was the administrative power of Western Sahara and could not transfer the territory to a third party since it lacked sovereignty over the area. Consequently, this invalidated the contracts signed by Morocco as the sovereign over Western Sahara concerning its resources.
The African Union, on the other hand, established a committee of inquiry in 1979, which concluded that since the Madrid agreements were void, Morocco should not invade Western Sahara. Finally, it was suggested that the best course of action be a referendum with two options: acceptance of the status quo, which would either keep the region under Moroccan control, or get independent.
Invalidity Of The Agreements
For several reasons, the Madrid Agreements are void. First, there are inconsistencies with the peremptory norm, which expresses the right to self-determination of a people under colonial occupation as a peremptory norm of international law.
Moreover, Spain cannot unilaterally transfer that status to another party because it acted as an administrative power rather than having sovereign authority over Western Sahara. The only choices left for Spain to fulfill its obligations were to either conduct the self-determination referendum that would mark the end of colonialism or hand over control of the region to the Trusteeship Council following Article 77.1.c of the United Nations Charter. Neither was completed.
Additionally, even though the ceding of Western Sahara was not thought to have an impact on Spanish sovereignty or territorial integrity, Article 14.II of the Law of Courts required the government to inform the courts of the treaty even though neither the courts nor the head of state was required to ratify it. The agreements were also signed behind the back of a chamber, which was prohibited by the Sahara Decolonization Act, which gave the government the authority to negotiate decolonization. They were not published in the BOE, as was required by civil law. The agreements themselves are ungoverned by law due to the Charter's secret signing and the delegation of that authority.
In a summary of the National Court from 2014, the current interior minister, Fernando Grande-Marlaska, states that a significant part of the doctrinal sector still sees Spain as the territory's administering power because the Madrid Agreements are void if the agreed-upon referendum on self-determination is not carried out, in accordance with the Resolution 3458 B.
The Madrid Declaration of Principles was invalid because it violated a binding rule of public international law, namely, the right of peoples under colonial control to express themselves through a referendum on self-determination. Western Sahara continues to be considered a non-self-Governing territory pending decolonization, whose administration by Morocco or Mauritania has never been recognized by the United Nations.
It has been over half a century since international law granted the Saharawi people their right to self-determination. Despite this, Morocco has managed to maintain the occupation with the support of its allies. Without the political will to impose international legitimacy, the rule of the strongest will continue to govern, and the United Nations will remain a useless, elitist organisation that primarily protects the interests of the most powerful nations.