Western Sahara Boundary Marker
Western Sahara Boundary Marker
Abstract and Keywords
In a remote part of Africa, a boundary marker can be found where the frontiers of Algeria, Mauritania, and Western Sahara meet. It marks the entry to the liberated zone of the Saharawi people’s homeland and presumptive state. The marker is a reminder of the role of territory in modern international law and law’s unfinished business of the self-determination of colonized peoples. The role of territory and boundaries in international law is considered. The paradoxes in law of the particular circumstances of a partly occupied Western Sahara, where its people constitute themselves both as national liberation movement and state, are addressed. The idea of national identity informing a desired marking of terrestrial space with certainty is explored. The chapter concludes with an assessment of the role of the border in a Westphalian system of law.
Austere and unexpected, the dark column rises over the flat desert floor of the Sahara, a puzzling sight. In a land where active armed conflict threatens to resume, one’s first impression of the object—the only artificial sight for a great distance all around—is a sense of foreboding, that this unusual sight in a barren landscape must be an artefact of war, an abandoned weapon or an unexploded bomb. The basaltic sands are littered with hostility’s detritus: shell casings, cluster munitions, remnants of grenades, the booster rocket of a missile. And if such apprehensions were not enough, just over the horizon in this part of northwest Africa is the world’s longest fortified structure, the ‘berm’, slashing diagonally across Western Sahara. In this place of conflict, one casts a wary eye over the unfamiliar. The marbled column, without initial clue as to its purpose, is something to be approached with care.
On closer inspection the object, evidently fabricated from steel pipe and fixed to a concrete pedestal, acquires an absurd quality as a kind of architectural folly. Except as a marker of the sun’s transit, casting an accurate shadow on the ground below, it seems to have no useful purpose. Checking its location on a map confirms its purpose: as a boundary marker. Installed upside-down (the Arabic numbers welded to its exterior being inverted), the column on further assessment is where it should be, namely, at the confluence of the boundaries of Algeria, Mauritania, and Western Sahara, the northernmost apex of Mauritania’s long triangle of land bisecting the other two countries.
In this chapter, I discuss the idea of the manifested frontier, using the boundary marker at the entry to Western Sahara as a heuristic to discuss what international law derives from the pursuit of territoriality. The history of the marker itself is first investigated before the present circumstances of contested territory and the aspirations of a refugee people to the recovery of that land are considered. Several paradoxes of international law are revealed by the marker. I analyse these tensions which point to the broader significance of the ‘organization of territory’ within international law.1
The origins of the Western Sahara boundary marker, at 27° 17’ 40” N; 8° 39’ 46” W, are obscure. There is no archival record of the marker nor any tangible evidence about which state or government put it in place. But its anecdotal history is consistent with the intrusion of European colonization in this part of Africa, including specific acts after 1900 to demarcate territory. In 1963 Spain began to place boundary posts along the 1,500km boundary of its Saharan colony with a newly independent Mauritania.2 Starting in the far south, on the Cape Blanc peninsula (p.531) at La Güerra, Spain’s goal was to make certain the extent of its colonial possession following the independence of adjacent French colonies: Morocco in 1956, Mauritania in 1960, and Algeria in 1962.3 Apart from being an assertion of title to territory, a reinforcement of sovereignty by installing markers was an implicit rejection of the international community’s call for an end to colonialism which had found form in the UN General Assembly’s Resolution 1514 of December 1960.4 For Spain had little interest in the remote interior of Western Sahara, only securing the area in 1958 under Operation Ecouvillon-Teide, a joint military response with France to deal with remaining elements of the irregular Moroccan Liberation Army. Its economic interest extended no further than the Bou Craa phosphate reserves in the north-central part of the territory, which it began developing toward the start of mining in 1973.5
Many African territorial boundaries from the era of European colonization are political compromises, the all-too-routine products of competing interests of great powers, drawn without regard to human reality and the local environment. Those which encompass Western Sahara are no different. In 1884 two seemingly unrelated events occurred which determined the territory’s shape. The first was the International Meridian Conference which had as its objective the agreement of states on a single, common line of longitude. Henceforth, states would conduct their mapping from one benchmark, the Prime Meridian extending north-south through the naval observatory at Greenwich. The use of other lines such as the Paris meridian (2° 20’ 14.025” east of Greenwich) and that through Madrid (6° 12’ 19.5” west of Greenwich) was to end.6 But the new convention was disregarded between France and Spain when they agreed to the limits of their colonial possessions, the boundary treaties of 1900 and 1912 which define Western Sahara instead employing the Paris meridian.
(p.532) The second event of 1884 that created present-day Western Sahara was the Conference of Berlin. This meeting of European states resulted in their agreeing on respective ‘spheres of influence’ in Africa thereby allowing Spain to acquire the coastline of the Río de Oro and Saguiet el-Hamra between Cape Blanc in the south and Cape Juby in the north, a vast meeting place of the stark expanses of the Sahara and the Atlantic Ocean. This was no accidental colonial possession, for Spain had fished the rich waters of the Canary Current area immediately offshore for centuries. The fishery almost completely dictated Spain’s interest in its colony for the next half century, its settlements limited to a few places on the windswept coast. Otherwise, Western Sahara would remain in relative obscurity until the era of UN-led decolonization began in 1960.7
In this remote part of Africa, the Western Sahara boundary marker is a reminder of the role of territory in international law and the law’s unfinished business of the self-determination of colonized peoples. The Saharawi people see what is to others a remote symbol of the creation of states in terms of their aspiration to self-determination. As one passes the marker while travelling into Western Sahara’s so-called liberated zone east of the berm—a place not occupied by Morocco and which sustains a small remaining Saharawi population—the boundary post is a reminder of the promise of decolonization and the possibility of statehood. Territorial boundaries, physically manifested by monuments, along with a drawing of them on maps, symbolize the desired goal of the international community for the stability of land between states.8
The Paradoxes of Territoriality
All peoples have a particular and evolving relationship with the territories they inhabit. The connection, whether nomadic, sedentary, urban, or transitory is one that informs identity, reinforcing sameness within a social and political community. It can exclude those from other places, as we are witnessing in a present age of cross-Mediterranean migration. For their part, the Saharawi have a singular connection to their territory. Historically, Saharawi identity was one of a particular linguistic group—their particular Arabic dialect is hassaniya—which lived semi-nomadically in a vast, isolated setting. This continued late into the Spanish colonial period in part because Spain did not extend a governing (or resource extracting) presence inland from the Atlantic coast and because the territory did not begin to urbanize until after World War II. The Saharawi had little seafaring ambition, something understandable given the hostile expanse of a long coastline and little outside contact (p.533) there. The great distance into metropolitan Morocco, notably across the divide of the Wadi (Oued) Draa river valley, meant limited contact to the north.
It was in this setting which a colonial Spain found itself, and where the Saharawi people imagining the promise of self-determination in the 1960s and 1970s began to conceive of territory in nationalistic and state terms. Artificial as they may have been, by 1975 when Spain started to withdraw, Western Sahara’s boundaries were irrevocably fixed, something confirmed during the brief period of its 1976–79 partition between Mauritania and Morocco, each accepting the exterior boundaries of the territory, and later in the 1991 agreement sponsored by the United Nations between Morocco and the Polisario Front for a self-determination referendum. Africa is resolutely a place of fixed territory, the durable consensus of states since the creation of the Organization of African Unity (now the African Union) being to leave the continent’s colonial boundaries undisturbed.9 Moreover, Western Sahara is a place where arbitrarily drawn colonial boundaries, unlike so much of the continent, did not result in much division of peoples. Only to the south, and sometimes inland to the east, did the Saharawi have an historical intermingling with others. Boundaries drawn here would mean little to a people few in number and at liberty to travel widely before the idea of the European nation-state came to the continent.
Two things reinforced a Saharawi perception of sovereign rights to a territorially defined Western Sahara. The first was the the 1975 invasion—by Morocco from the north and Mauritania from the south—and the resulting division of the Saharawi people. Half the population fled to the area near Tindouf, who now inhabit six widely spaced camps of some 25,000 people each, while the remainder stayed under occupation, with Morocco eventually taking three-quarters of the territory after Mauritania’s 1979 withdrawal. The Tindouf refugee camps, isolated and self-governing, have deep social and cultural structures that reinforce a second and third generation Saharawi identity in exile.10 The perception of self-determination as having a territorial identity can be understood in the fact of the Saharawi people existing in three geographic spaces: (i) the area under occupation, (ii) what can be called the waiting space of an autonomous existence in refugee camps, and (iii) the perceived freedom of the liberated zone. The boundary marker symbolizes a physical transition as much as it does a psychological one to citizens of this refugee nation. Of course, the more pronounced boundary, one with consequences, is the berm. It divides Western Sahara in every way but the legal: socially, physically, and environmentally.11 When one enters the liberated zone, the boundary marker takes on added significance. It denotes a place of achieved emancipation or, to recall the familiar political term, independence.
(p.534) A second phenomenon that has reinforced the Saharawi identity through territory is international law itself. Along with recent and difficult cases of decolonization—East Timor and Namibia, which also resulted from delayed European decolonization and annexation by neighboring states—the ‘question’ of Western Sahara is one with international legal significance. There is little ambiguity in the status of the Saharawi, their territory and the corresponding obligations of the international community. Much was made after 1960 of the right of non-self-governing peoples to self-determination, confirmed by annual and case-specific resolutions of the UN General Assembly, and its prominence in human rights treaties. Self-determination, the International Court of Justice noted as recently as 2010 in its Kosovo Advisory Opinion, is a universal obligation, binding on all states in respect of colonized peoples.12 Together with principles of territorial integrity, the rule to leave colonial boundaries undisturbed and the large number of decolonization cases that resulted in statehood, there is much law in favour of the Saharawi self-determination project.13 However, the denial of the right to self-determination continues, though Algeria and Mauritania soon recognized a Saharawi state declared unilaterally on 27 February 1976, just as Spain finally departed the territory. The three states accept their mutual boundaries.
For international law as a whole, the Western Sahara boundary marker reveals ongoing tensions. The inability of the law of self-determination to be meaningfully applied with finality in Western Sahara represents the practical failure of earlier promises. There is no question that a people entitled to sovereignty in their territory (who are accepted, sometimes reluctantly, by interested states as exercising it in the liberated zone) can pursue the right of self-determination. However, because the Saharawi are not ‘sufficiently’ organized as a state they have had no access to the law to ensure for themselves that right. This has started to change recently. In 2012 the Polisario Front brought a challenge in the European Court of Justice (CJEU) to the extension of European Union free trade with Morocco to Western Sahara.14 And in (p.535) 2015 the Saharawi government joined the international humanitarian law system by acceding to the Geneva Conventions of 1949. Since its creation the Saharawi state has been styled as the Saharawi Arab Democratic Republic (SADR) with a proposal made during the 2015 national congress of the Saharawi people to restyle it as the Republic of Western Sahara. The SADR flag, patterned on that first seen in the 1916–18 Arab Revolt, is a symbol of Saharawi identity in the occupied part of Western Sahara where it is illegal to display. For all this, the substance of self-determination has proven hollow for the Saharawi. The boundary marker implicitly rebukes this failure, announcing the entrance to a place where the international community has decided to not apply the law or a collective commitment through the United Nations to the people of Africa’s last colony.
A second problem is revealed by the requirements of international law for the creation of states. A significant and practical step in achieving statehood is recognition, and the standard to gauge that is entry to UN membership.15 Numerous states (more than seventy) and the African Union accept the Saharawi entity as having legal personality and sovereign equality with them. However, most outside the continent opt for a less politically fraught path when they defer to the UN about self-determination in Western Sahara, staying away from any suggestion of recognition. The reasoning on both sides of this divide is readily understood: Saharawis are entitled at law to determine if they wish to create for themselves a state/Saharawis must allow the law of self-determination (mostly a matter of procedure for a referendum) to run its course before they can achieve their desired state.
A third problem results from territoriality, what we might call the aspiration to achieving a discrete terrestrial space. Historically, the Saharawi people, who were few in number across a large area, had no political need to identify for themselves an exclusive national space.16 The question which emerges from this paradox is whether, in the absence of a colonially created Spanish Sahara, would the Saharawi people have sought identity in statehood? A further paradox can be seen in Western Sahara’s boundaries. The law’s operation forces us to accept an artificial (and sometimes unfair or impractical) status quo of physical division in this particular colonial setting which, coupled with the principle of territorial inviolability, leaves the international community unable to address the effects caused by that self-same creation of a boundary. The continuing tragedy of Syria after 2011 is another example, a post-empire state with artificial boundaries drawn by colonial powers, perpetuating a territorial integrity that has resisted meaningful humanitarian intervention.17 (p.536) A final paradox, which may be the most important for the situation on the ground in Western Sahara, is that, with settled territorial considerations, namely, a certainty of boundaries and of title within them, the way should be clear for self-determination.
Frontiers and Symbols
The necessity of frontiers in international law is undeniable. If territory is a basic condition for the existence of a state, boundaries serve to secure and symbolize such a result while confirming the Westphalian ideal of sovereign equality between states. This norm of the international community can be observed in the exploration of the seas, the quest for geographic knowledge, and the mapping of the world, all having much to do with a division of land between states and the formation of empires.18 The rules about territory and its definition through boundaries are meant to offer certainty for states and stability for the international community. Yet much of the history of conflict is about imperfect rules for the acquisition and presence of states in uncertain and contested settings.
The essential legal principles of territoriality are settled. Two of the most important are demonstrated by the case of Western Sahara: the prohibition against states gaining territory by force (or occupation), and the right of colonized (ie non-self-governing) peoples to their land. Judge Dillard of the International Court of Justice addressed the second of these in the 1975 Western Sahara Advisory Opinion when he wrote that ‘it is for the people to determine the destiny of the territory and not the territory the destiny of the people’.19 The questions asked of the Court in the Advisory Opinion—for the guidance of the General Assembly in its oversight role for decolonization—underscores the paradoxes illustrated by the Western Sahara boundary marker. Was the territory at the time of Spain’s acquisition terra nullius—a place belonging to no one—and, if not, what connections existed between the territory and its neighbouring states of Mauritania and Morocco?20 The answers to both would combine to result in the Court affirming the Saharawi right to self-determination in the context of the United Nations Charter and UN General Assembly Resolution 1514 of 14 December 1960: Western Sahara was inhabited at the time of its colonial acquisition by Spain, and neither Morocco or Mauritania had a tenable claim to the territory.21 As with the International Court of Justice’s (p.537) observation two decades later in the case of East Timor, a clear assertion of a legal right could only tend to reinforce the Saharawi conception of territorial identity.22
So what is the broader significance of the boundary marker as an object for international law? A ‘manifested frontier’ fulfils the function of fixing place, of demonstrating the reach of sovereign title. However, border markers come with useful secondary symbolism associated with the cooperation between neighboring states in agreeing to an uncontested (or resolved) common boundary. And established boundaries are crucial for how states govern themselves within, controlling movement in and out, and securing space and resources. In this context, another paradox of the Western Sahara boundary marker can be observed: The marker’s purpose, always to indicate a prescribed frontier, has become reversed. Spain as sovereign sought to define a frontier for exclusionary purposes. The Saharawi, in attaching symbolic importance to the marker, seek their inclusion within the same frontier, that is, a return to a place denied them. Above all, for the people of a state not entirely in being, the marker emphasizes the fact of possession of some of that desired space—however small and remote is the area east of the berm—thereby underscoring the aspiration to self-determination.
The age of the tangible frontier marked out as such on the ground, as is the object of the Western Sahara boundary marker, seems threatened by modern technology including accurate geo-location devices.23 Ours is said to be an increasingly borderless world of social, economic, and political interaction, yet the presence of an established frontier creates a perceived (and often real) barrier to freedom of movement, something exemplified by the continuing crisis of refugees across the Mediterranean.24 An assertion of the traditional function of the physical and ideological border has come at a time when the United Nations has largely completed the task of decolonization that led to the creation of new states in the second half of the twentieth century.25 The Western Sahara boundary marker exemplifies these (p.538) shifting sands in the significance of frontiers and state control of territory. On the one hand, we can anticipate a fading into history of the marker after the ‘question’ of Western Sahara is resolved. A great distance from human habitation (and Algerian and Saharawi check-points), the marker will no longer be destination or waypoint. This would return us to the time before the colonialism of the nineteenth century when the world held no interest toward a terra obscura of relative unimportance, leaving desert’s writ alone to run here again. But perhaps not. The Algerian town of Tindouf will be an urban connection with the interior of an independent Western Sahara, not least because of twenty-first-century security concerns in the greater region and the migration of peoples out of Africa. And the frontier will define an area of economic interest to the Saharawi state for mineral exploration which recently began in the south. A change in purpose, not the loss of utility, is the future history of the Western Sahara boundary marker.
(1) The phrase is Anne Peters’. See ‘Conclusions’ in Jan Klabbers, Anne Peters, and Geir Ulstein, The Constitutionalization of International Law (OUP 2009) 342, 347.
(2) There is no record of the marker in Saharawi archives in the refugee camps at Tindouf, or public Spanish government and academic materials. Evidence of the marker’s origin was obtained from interviews of Saharawi citizens and government officials from 2012 to 2016, including the director of the National Resistance Museum at Rabouni refugee camp. I am grateful for the kind help with inquiries provided by Kamal Fadel of the Saharawi Republic Petroleum and Mining Authority.
(3) The inverted numbers welded to the exterior casing of the marker appear to be a partial geographic coordinate—8° (west longitude)—and sequence number, and not a warning to passersby.
(4) Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (14 December 1960) (adopted by eighty-nine votes to none, nine abstentions). It is unclear when Spanish colonial authorities finished installing the markers. By 1973 Spain was contending with the emergence of the Saharawi national liberation movement, the Frente Polisario, and had started to lose authority over interior areas after a 1974 promise to the Saharawi people that they would be able to exercise self-determination.
(5) See Diego Aguirre and José Ramón, La última guerra colonial de España: Ifni-Sahara, 1957–1958 (Algazara 1993). Spain discovered surface deposits of high quality phosphate mineral rock at Bou Craa in 1947 and began constructing a mine site and transporter conveyor system to the coast in 1963. Spain relinquished 65 per cent of its ownership of the enterprise to Morocco in 1975 and the remainder in 2002.
(6) See Sandford Fleming, The International Prime Meridian Conference—Washington—October, 1884: Recommendations Suggested <https://archive.org/details/cihm_03131> accessed 4 May 2017. The concern of the twenty-six participating states—Liberia the only one from Africa—was also about a standard basis for time, by which universal or ‘cosmic’ time would also be derived from a common longitude. See also Geoff Gordon, ‘Railway Clocks’, this volume.
(7) The most comprehensive history of the decolonization of Western Sahara remains Tony Hodges, Western Sahara: The Roots of a Desert War (Lawrence Hill 1983).
(8) Judge Christopher Weeramantry considered the problem of dividing territory by boundaries and a need for alternative approaches in the ICJ’s Botswana/Namibia judgment  ICJ Rep 1045, Dissenting Opinion para 104: ‘Instances are not wanting of judicial recognition of the need to prevent a merely mechanistic division which takes no account of human factors and practical realities.’
(9) The territorial principle in the Charter of the Organisation of African Unity is, of course, uti posseditis juris. The principle was defined by the ICJ in its 1986 Burkina Faso/Mali decision.
(10) For cultural and social perspectives about the Saharawi people and their circumstances under occupation and in the Tindouf camps, see Alice Wilson, Sovereignty in Exile: A Saharan Liberation Movement Governs (U Pittsburg Press 2016) and Pablo San Martin, Western Sahara: The Refugee Nation (U Wales Press 2010).
(11) Built by Morocco from 1981 until 1988 in sections that extended progressively south, the berm is the longest and most heavily fortified structure in the world. It is a continuous line of three parallel ribbons of sand heaped 3m high, with a more or less continuous minefield along its eastern side, and garrisoned by an estimated 65,000 Moroccan soldiers. The UN Mission for the Referendum in Western Sahara, MINURSO, patrols the berm to monitor the UN/Morocco/Polisario Front ceasefire and referendum agreement. Only UN observers are able to cross the berm. The environmental impacts of the berm are not well understood.
(12) Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion  ICJ Rep 403 at para 79: ‘During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation.’ (Citations omitted.) The right of non-self-governing peoples to self-determination is also found at Common Article 1 of the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.
(13) The Saharawi government is increasingly resorting to the law in asserting territorial sovereignty and resources rights, in 2016 delivering a letter to the UN Secretary-General detailing the area of an exclusive economic zone in the Atlantic Ocean claimed under a 2009 statute.
(14) See Frente Polisario c. European Council, Case C-104/16 P, judgment of the Court of Justice of the European Union (Grand Chamber) 21 December 2016. The Court affirmed the territorial status of Western Sahara as concluded by the ICJ in 1975—discussed later—and noted that an agreement to trade in products from the territory would require consent of the Saharawi people expressed by their representative organization, the Polisario Front. See notably paras 84–106 of the judgment.
In May 2017, Saharawi authorities obtained a court order in South Africa to detain a cargo of phosphate rock from Western Sahara to a New Zealand fertilizer manufacturer. See Saharawi Arab Democratic Republic and another v The owner and charterers of the mv “NM Cherry Blossom” and others, High Court of South Africa (Eastern Cape Division), Case 1487/2017.
(15) See James R Crawford, The Creation of States in International Law (2nd ed, OUP 2007).
(16) See the helpful essay by Sohail Hashmi, ‘Political boundaries and moral communities: Islamic perspectives’ in Allen Buchanan and Margaret Moore (eds), States, Nations and Borders: The Ethics of Making Boundaries (CUP 2003) 100.
(17) On the problem of intervention and territorial integrity in Syria’s conflict, see usefully Graham Cronogue, ‘Responsibility to Protect: Syria – The Law Politics and Future of Humanitarian Intervention Post-Libya’ (2012) 3 Journal of International Humanitarian Legal Studies 124, and Seán Butler, ‘ “To Unite Our Strength to Maintain International Peace and Security”: The International Response to the Syrian Civil War & the Global Discourse on State Sovereignty’ (2014) 9 Irish Yearbook of International Law 7.
(18) See Nicholas Crane, Mercator:The Man Who Mapped the Planet (Weidenfield and Nicholson 2002).
(19) Western Sahara Advisory Opinion  ICJ Rep 12, Separate Opinion 122. When the Court issued its opinion, Spain had not yet relinquished its colony and no occupation by neighboring states had started.
(20) UN General Assembly Resolution 3292 (XXIX) (13 December 1974) requested the International Court provide an advisory opinion in reply to the questions: ‘I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?’ And, if not: ‘II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?’
(21) The Court concluded ‘that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.’ Western Sahara Advisory Opinion (n 18) paragraph 162.
(22) East Timor (Portugal v Australia)  ICJ Rep 90.
(23) See Ron Adler, ‘Geographic Information in Delimitation, Demarcation and Management of International Land Boundaries’ (International Boundaries Research Unit 2001) <https://www.dur.ac.uk/ibru/publications/view/?id=219> accessed 17 August 2018.
(24) The concern of states over the security of frontiers in response to political problems resulting from human migration can be seen also in Australia’s ‘Pacific Solution’ transfer to third states of refugee claimants who arrive by sea, and in the efforts of United States President Donald Trump to extend and make secure the US–Mexico frontier.
(25) ‘[T]he large majority of remaining Non-Self-Governing Territories are small island Territories’. Implementation of the Declaration of the Granting of Independence to Colonial Countries and Peoples by the specialized agencies and international institutions associated with the United Nations, UNGA Res 71/104 (23 December 2016).