Jurists Meeting conclusions
MEETING OF JURISTS of the 44th EUCOCO, held in Vitoria on 22 and 23 November 2019, after studying, debating and analysing the legal situation of Western Sahara, its population, its territory and its natural wealth.
ADOPTS THE FOLLOWING CONCLUSIONS:
It should be recalled that Western Sahara was declared a Non-Self-Governing Territory by the United Nations in 1963. The invasion of Western Sahara by the Moroccan Regime in 1975 lacks any valid legal effect for international law, implying such action a mere exercise of violence.
The illegal stay of Morocco for forty-four years as an occupying country of Western Sahara is contrary to the Opinion of the International Court of Justice, and is maintained with the connivance of the United Nations Security Council, especially France and Spain, again denying the inclusion of verification of human rights in the mandate of MINURSO. However, Morocco’s systematic violation of the human rights of the Saharan population in the Non-Self-Governing Territory requires the immediate protection and guarantee of those rights by the United Nations, through the extension of MINURSO’s competences.
3.- The right of the people of Western Sahara to self-determination must be observed, and this right must be enshrined through the holding of a free, democratic and transparent referendum which includes the option of independence.
Morocco lacks jurisdiction over the Non-Autonomous Territory of Western Sahara and its population, for which reason the judicial proceedings against Saharawi human rights defenders are null and void, all of which also derives from the order adopted on 4 July 2014 by the Criminal Chamber of the National High Court (Pleno de lo Penal de la Audiencia Nacional).
Furthermore, the Moroccan administration systematically denies the basic elements of judicial proceedings, preventing the exercise of the right of defence of Saharawis, imprisoned for defending their condition, their identity and the human rights of their people.
The Moroccan regime must proceed to the immediate release of the prisoners, and to strict respect for the fundamental rights of assembly, association, demonstration, freedom of expression and movement, the creation of political parties and the public demand for the holding of a referendum by the population concerned, rights which the right to self-determination of the people of Western Sahara concentrates as a corollary.
The Congress of Deputies of the Spanish State should request, through the creation of a Special Commission, complete and detailed information on the events that led to the signing of the Madrid Agreements. And once these have been determined, if the above conclusions are correct, adopt an Agreement declaring that, in the opinion of the Spanish State, the Declaration of Principles made in Madrid on 14 November 1975 is a null and void Agreement in accordance with international law in force and, consequently, that the Government must guide its international policy, in relation to the question of Western Sahara, at all times and under all circumstances, in accordance with the new Agreement to be adopted. Until now, the position of the successive governments of the Spanish State is difficult to accept, since it is equivalent to admitting the Madrid Agreements despite their nullity.
The creation and operation of the NATIONAL MECHANISM FOR THE PREVENTION OF TORTURE brings about the ratification by the Spanish State of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the United Nations. Among other obligations is that each State Party shall permit visits to any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by order of a public authority or at its instigation or with its express or tacit consent. These visits shall be carried out with a view to strengthening, if necessary, the protection of these persons against torture and other cruel, inhuman or degrading treatment or punishment. We should therefore request the National Mechanism for the Prevention of Torture to include, within the catalogue of detention centres subject to preventive visits, detention centres located in the territory of Western Sahara.
7.- Usually when the media make reference to the POLISARIO Front, the internationally recognised representative of the Saharawi people, it is intentionally called an independence movement, which leads one to think that it is a secessionist movement, and which cannot be extrapolated in an analogy with other liberation movements.
The list of facts which reflect the quality of the Polisario Front as the sole and legitimate representative of the Saharawi people is based on unbeatable legal arguments.
As long as Western Sahara is on the list of Non-Self-Governing Territories, Spain will remain the de jure administering Power of the Territory, as confirmed by the Audiencia Nacional in its order of 4 July 2014.
The aim is for Spain to establish that the Polisario Front is the legitimate representative of the Saharawi people and that it has been exercising this status since 10 May 1973.
And the legal consequence of establishing facts is the recognition of rights. The Spanish State must recognise the diplomatic status of the Polisario Front.
It is well known that the question of Western Sahara is a flagrant injustice. Spain and the EU have a very clear responsibility to play a key role in resolving this more than forty-four year old conflict.
Article 56 of the UN Charter states that “Member States undertake to take measures for the achievement of the purposes set forth in Article 55” (self-determination of peoples).
The Spanish State must adopt a more active approach to put an end to this conflict and, given its singular responsibility, take the decision to elevate the rank of the POLISARIO Front Representation, recognise its diplomatic status, as a political gesture of support for the UN peace process.