Tags : Western Sahara, Morocco, Spain, airspace control,
History does not fade away, no matter how much people try to forget it. Stamps, black and white photographs and even school textbooks and worn tourist postcards preserve the legacy of the Spanish Sahara, once Spain’s 51st province. A testimony that also preserves international law at a time marked by the Spanish government’s change of position in the conflict in Western Sahara, the former Spanish colony illegally occupied by Morocco, for whose responsibility Moncloa and the Foreign Office are trying to disengage.
Since his arrival in office, even before the Copernican U-turn that is now a year old, the current Foreign Minister José Manuel Albares has used the same argument to exhaustion. « Neither on the UN list of non-self-governing territories nor in any Security Council resolution is Spain one, since it ceased to be one in 1975 », Albares stated in October 2021 in the Congress of Deputies, when the rapprochement with Rabat began to take shape in exchange for support for an autonomy plan for the last territory pending decolonisation on the African continent.
An attempt to shirk a historical responsibility, following the withdrawal of the last Spanish troops in 1976, which has become the main argument put forward by Albares and his cabinet and which international law scholars dispute without hesitation. Since 1965, and in accordance with UN General Assembly Resolution 2072 (XX), Spain has been the administering power, they argue.
In 2014 the Audiencia Nacional expressly affirmed that Spain remains the administering power of Western Sahara.
Domestic law
« In this matter, there are two perspectives, the internal and the international. From the internal point of view, in 2014 the National Court expressly stated that Spain continues to be the administering power and that, as such, the obligations of the administering powers, which consist of promoting development and protecting the population, remain in force », Juan Soroeta, professor of International Public Law at the University of the Basque Country, told El Independiente. Their responsibilities include « the legal and political obligation to take all necessary measures to guarantee the effective self-determination of the Sahrawi people ».
Paradoxically, that ruling recognising Western Sahara as a territory still under Spanish sovereignty was handed down by a plenary session of 15 judges presided over by the current Interior Minister Fernando Grande-Marlaska, who, despite his parliamentary reprobation last February for his « lies » in the handling of the Melilla tragedy of June 2022, which claimed the lives of some twenty immigrants, continues to defend the police action at the fence, including that of the Moroccan gendarmerie.
International law
Spain’s responsibility towards the Saharawis, Soroeta stresses, is also enshrined in the Constitution itself. Article 10 of the Constitution states: « The norms relating to the fundamental rights and freedoms recognised by the Constitution shall be interpreted in accordance with the Universal Declaration of Human Rights and the international treaties and agreements on the same subjects ratified by Spain ».
And this protection refers to the resolutions of the UN General Assembly and the list of non-self-governing territories that is published annually. In its latest revision, dated May of last year, Western Sahara appears with the addition: « On 26 February 1976, Spain informed the Secretary-General that, as of that date, it had terminated its presence in the Territory of the Sahara and considered it necessary to place on record that Spain considered itself henceforth exempt from any international responsibility of any kind in connection with the administration of the Territory, in view of the cessation of its participation in the temporary administration established for the Territory. In 1990, the General Assembly reaffirmed that the question of Western Sahara was a question of decolonisation which remained to be completed by the people of Western Sahara ».
And it is this footnote that Albares uses to publicly renounce any connection with Western Sahara and its dramatic fate. « In reality, this footnote only means that the secretary general takes note of what Spain says, but does not assess whether this declaration has legal effects or is in accordance with international law », Soroeta points out. In 1976, Morocco and Mauritania divided up the territory, and this document, from which Mauritania later withdrew, is also included in the UN register of treaties, even though it is illegal and null and void.
He adds: « The UN General Assembly passes a resolution every year recalling that the administering powers continue to maintain their obligations until the General Assembly itself says otherwise. It was the Assembly that gave the power to Spain and other colonial states and it is the only one that can put an end to it. The General Assembly has never said that Spain has ceased to be a power in Western Sahara ». In his view, « it is one thing for Spain to want nothing to do with the territory, and it is obvious that a state can renounce its rights, but not its obligations ».
Land, sea and air
And those obligations remain in force, on land, at sea and in the air. Morocco militarily controls 80 per cent of the territory, which covers 266,000 square kilometres, just over half of Spain’s total. The remaining 20 per cent is in the hands of the Sahrawi Arab Democratic Republic, controlled by the Polisario Front, an internationally recognised organisation representing the people of Western Sahara.
The 2,720-kilometre wall separates the two areas, now the scene of a low-intensity war that resumed in November 2020. The maritime space is 100% controlled by Morocco, in violation of international law. Rabat has negotiated fishing agreements with the European Union that have been overturned by the EU courts.
Ninety-six percent of the catches covered by this agreement, whose annulment has yet to be ratified, take place in Western Saharan waters. The cause of the Moroccan setback lies precisely in the lack of consultation with the Saharawi population on the fisheries agreement: « respect for their separate and distinct status and, on the other hand, the obligation to ensure the consent of their people in the event of the application of the Association Agreement on that territory », the European court states.
« The General Court accepts the Polisario Front’s argument that the requirement concerning the consent of the people of Western Sahara, as a third party to the agreements at issue, has not been respected within the meaning of the principle of the relative effect of the Treaties, » the judgement announced in September 2021 states.
An exercise of force to which the airspace escapes. After 47 years of occupation of the territory, the skies over Western Sahara are still controlled from the Canary Islands, as established in the map of the International Civil Aviation Organisation, a UN agency that oversees international civil aviation.
Despite Rabat’s attempts to change this equation, the airspace of its expansionist dream is out of its hands. It is the Canarian air traffic controllers who continue to monitor and manage flights in the area. « The seriousness of the Spanish position is that today it is sitting in the dock alongside the occupier, defending the illegal exploitation of Saharawi natural resources », concludes Soroeta.
The International Civil Aviation Organisation (ICAO) map leaves no room for doubt. According to ICAO GIS Services, the skies over the territory illegally occupied by Morocco are controlled from the Fir of the Canary Islands. In aeronautical jargon, Fir is a flight information region where a flight information and alerting service (ALRS) is provided. The International Civil Aviation Organisation delegates operational control of a given FIR to a country, in this case, the one covering the Canary Islands and Western Sahara falls to Spain.
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