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Max Planck Encyclopedia of Public International Law [MPEPIL]

Decolonization: Spanish Territories

Paula María Vernet

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 26 May 2019

Colonization / Decolonization — Act of state

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Introduction

The Spanish colonial empire comprised territories in America, Africa, and the Pacific. Upon discovery of the New World, Spain encouraged travel and exploration, and commissioned military officers to rule over the conquered territories of the Americas on behalf of the Spanish Crown (Colonialism; Territory, Discovery). At that time, Spanish conquest over America was legitimized by evangelization of non-Christians; the Pope ratified the discovery of the territories by issuing bulls, thus preventing other Christian princes from taking possession of them.

The territory colonized by Spain in America was vast; it included most of present-day Central America, most of South America, Mexico, and south-western United States of America. The Spanish Crown had to divide its territories in order to exercise adequate political and administrative control, thus creating viceroyalties and general captaincies. Spain exercised control over these colonies for more than three centuries until most territories seceded from the empire and became newly independent States.

The history of Spanish decolonization in Africa is very different and more complex. Although Spanish possessions in Africa were minor compared to those of other colonial powers (see also Berlin West Africa Conference [1884–85]), the decolonization process is more recent and problematic, and for that reason will be dealt with in detail.

In contrast, the Spanish East Indies were ceded by the end of the 19th century. As a consequence of the 1898 Spanish—American War, the Philippines and Guam were ceded to the US by the Treaty of Peace between the US and Spain of 1898. The next year, by declaration of 12 February 1899 and Treaty between Germany and Spain Confirming the Secession of the Carolines ([30 June 1899] (1898–99) 187 CTS 375), the Caroline, Pellew, and Mariana Islands were ceded to Germany in return for a pecuniary indemnity of 25 million pesetas plus the concession to Spanish commerce and agricultural establishments of the same treatment and facilities conceded to German commerce and agricultural establishments, and the recognition of same rights and liberties for Spanish religious orders as for German ones. These treaties put an end to Spanish possessions in the Pacific.

B. Spanish Territories in America

1. Independence of Spanish American Colonies

(a) Latin America at the End of the 18th Century

By the end of the 18th century Spanish Latin America was organized into four viceroyalties: New Spain (comprising the territory of present Mexico and south-western US), New Granada (present Colombia, Panama, and Ecuador), Peru (present Peru), Río de la Plata (present Argentina, Paraguay, Uruguay, and Bolivia); and four general captaincies: Cuba (present Cuba and other territories of the Caribbean: Puerto Rico and Santo Domingo), Guatemala (present Guatemala, Belize, El Salvador, Honduras, Nicaragua, and Costa Rica), Venezuela (present Venezuela), Chile (mainly present Chile), which in turn were divided into administrative units called intendencias and military districts called gobernaciones.

Other insular territories such as Bahamas, Antigua and Barbuda, Trinidad and Tobago, Barbados, Grenada, Jamaica, San Cristobal and Nieves (Saint Kitts and Nevis), Dominica, and Saint Lucia, which were discovered during Columbus’s voyages on behalf of the Spanish Crown, had become British colonies during the 17th and 18th century. Saint Kitts and Nevis, Dominica, and Saint Lucia had also been claimed as French possessions but finally became part of the British Empire. Eventually, all of these territories became independent States and joined the Commonwealth (see also Decolonization: British Territories); they are at present also part of the Caribbean Community (CARICOM).

(b) Uti possidetis iuris

As a result of American and French independence, and influenced by new political and economic ideas from Europe, revolutionary movements arose in Latin America which gradually led to the independence of all territories of Spanish America. By virtue of the uti possidetis doctrine the new States considered themselves successors of Spain with regard to the titles over the West Indies which had been granted by Pope Alexander VI in the Bull Inter caetera of 4 May 1493 (in Davenport [ed] 71), the Bull Dudum siquidem of 26 September 1493 (ibid 79), and by Pope Julius II in the Bull Ea quae of 24 January 1506 (ibid 107). The first of these bulls established a pole-to-pole delimitation line, at 100 leagues off the Azores Islands, and granted all land discovered to the west and south of the line to the Spanish Crown and the discoveries to the east of the line to the Portuguese Crown.

Portugal rejected this decision and the dispute was intensified when Spain’s Catholic monarchs authorized their subjects to fish up to Sénégal River further from Cape Bojador. In order to avoid an armed conflict a solution was sought through diplomatic negotiations and as a result the Treaty of Tordesillas signed on 7 June 1494 (in Davenport [ed] 84). A new line established 370 leagues to the East of Cape Verde Islands divided the Atlantic: the line should be a meridian and all territories found to the east would belong to Castile and those to the west to Portugal; territories discovered by each Crown in the other area should be returned to the other party. The determination of this demarcation line turned out to be impossible in practice for Cape Verde was an archipelago and it was not established from which of the islands the distance of 370 leagues should be measured, nor whether the ‘league’ measure was the Spanish or the Portuguese. Nevertheless, the Treaty of Tordesillas meant independence of both Crowns from the Pope’s authority.

Since the titles derived from the bulls, and the Treaty of Tordesillas legitimated Spanish sovereignty over all lands discovered and yet to be discovered without requiring effective possession, no territory in Spanish America was considered res nullius. The formulation of uti possidetis comprised not only the sovereignty title but also the delimitation of frontiers, thus the administrative boundaries previously established by the Spanish Crown became international boundaries.

10 Newly independent States introduced this principle in their constitutions and boundary treaties. It was also referred to in agreements concluded for the submission of territorial disputes to arbitration (eg Affaire des frontières Colombo-vénézuéliennes [Colombia v Venezuela]), in Honduras v Nicaragua (Arbitral Award Made by the King of Spain on 23 December 1906) and in the Boundary Case between Bolivia and Peru (1909; Boundary Disputes in Latin America).

11 The International Court of Justice (‘ICJ’) recognized the uti possidetis doctrine as one of the most important legal principles regarding territorial title and boundary delimitation at the moment of decolonization (eg Frontier Dispute Case [Burkina Faso/Republic of Mali]). In many cases, the ICJ had to consider the decolonization process in Latin America, for the parties had come into being with the break-up of the Spanish Empire and their territories corresponded to the administrative subdivisions of that empire (eg Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea Case [Nicaragua v Honduras]; Land, Island and Maritime Frontier Dispute Case [El Salvador/Honduras: Nicaragua Intervening]; Territorial and Maritime Dispute Case [Nicaragua v Colombia]; Dispute regarding Navigational and Related Rights Case [Costa Rica v Nicaragua]).

12 A good example is the Land, Island and Maritime Frontier Dispute Case between El Salvador and Honduras, in which a chamber of the ICJ had to adopt the course of the boundary line in six disputed sectors and for that purpose examined the uti possidetis boundary and the evidence of post-colonial effectivités in respect of each disputed sector. The parties had agreed that the fundamental principle for determining the land frontier was the uti possidetis iuris. The ICJ chamber noted that the essence of the principle was its aim to secure respect for the territorial boundaries at the time of independence, and its application had resulted in colonial administrative boundaries being transformed into international boundaries. The parties had identified the colonial administrative divisions they claimed to have succeeded to, yet the problem was to identify the areas and the boundaries which corresponded to those provinces which in 1821 became respectively El Salvador and Honduras. In Spanish Central America there were administrative boundaries of different kinds or degrees and, in this case, the parties had submitted documents referred to collectively as ‘titles’ concerning grants of land by the Spanish Crown in the disputed areas. Consequently the chamber examined, in respect of each disputed sector, the evidence of post-independence effectivités affording indication of the 1821 uti possidetis boundary. The chamber also examined whether the parties’ conduct amounted to acquiescence or recognition in situations where the parties had in effect clearly accepted a variation or an interpretation of the uti possidetis iuris position. The ICJ chamber recalled that the effect of the uti possidetis iuris was not to freeze for all time the provincial boundaries.

13 Another case in which the ICJ recognized the importance of uti possidetis is the Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea Case (Nicaragua v Honduras), in which under the Border Demarcation Convention between Honduras and Nicaragua (‘Gómez-Bonilla Treaty’ [signed 7 October 1894, entered into force 26 December 1896] 180 CTS 347), both parties had agreed that ‘each Republic [was] owner of the territory which at the date of independence constituted, respectively, the provinces of Honduras and Nicaragua’ (Art. 2 (3) Gómez-Bonilla Treaty).

14 Regarding the question of sovereignty over the islands, the ICJ began by observing that uti possidetis iuris may, in principle, apply to offshore possessions and maritime spaces. However, the mere invocation of the principle did not of itself provide a clear answer as to sovereignty over the disputed islands. If the islands were not terra nullius, as both parties acknowledged and as is generally recognized, it had to be assumed that they had been under the rule of the Spanish Crown. However, the Court recalled that uti possidetis iuris presupposed the existence of a delimitation of territory between the colonial provinces concerned having been effected by the central colonial authorities. Thus, in order to apply the principle of uti possidetis iuris to the islands in dispute, it had to be shown that the Spanish Crown had allocated them to one or the other of its colonial provinces.

15 Notwithstanding the historical and continuing importance of the uti possidetis iuris doctrine, so closely associated with decolonization, in this case, according to the ICJ, the application of this principle to those small islands, located considerably offshore and not obviously adjacent to the mainland coast of Nicaragua or Honduras, would not settle the issue of sovereignty over them. Consequently the ICJ had to resort to post-colonial effectivités and concluded that Honduras had sovereignty over the islands.

16 Similarly, in the case Territorial Dispute and Maritime Delimitation (Nicaragua v Colombia) the ICJ concluded that the principle of uti possidetis iuris afforded inadequate assistance in determining sovereignty over the maritime features in dispute between Nicaragua and Colombia (the islands of Albuquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana, and Serranilla), since nothing in the historical record indicated whether these features had been attributed to the colonial provinces of Nicaragua or of Colombia prior to or upon independence from Spain. Therefore the Court resorted to effectivités. The Court found that for many decades Colombia had continuously and consistently acted à titre de souverain in respect of the maritime features in dispute. On the other hand, there was no evidence of any protest by Nicaragua prior to 1969 and no evidence of acts à titre de souverain on the part of Nicaragua. Therefore, the Court concluded that Colombia had sovereignty over the said features.

(c) The Independence Process

17 At the north of the vast Spanish territories in America (actual Mexico) as well as at the south (the Viceroyalty of Rio de la Plata), the quest for independence was inspired and influenced by the Napoleonic occupation of Spain. Bonaparte was seen as an enemy of freedom and religion, and when he took Ferdinand VII, the Spanish Monarch, as prisoner, most criollos (offspring of Spanish born in the Americas) started to affirm that in the absence of a legitimate government, sovereignty should return to the people. Provisional governments called juntas were formed in metropolitan Spain to govern on behalf of King Ferdinand VII until his release. The American colonies did not wish to recognize the authority of those juntas, for the colonies were possessions of the Crown and thus believed themselves to be entitled to their own juntas, even if they also were to govern in the name of Ferdinand VII, in order to keep the colonies safe from Napoleon’s ambition.

18 In 1810 an eleven-year war for independence began in the Viceroyalty of New Spain. On the one hand, criollos believed that New Spain should have its own government; on the other hand most Spanish representatives and residents were against Mexican autonomy. The situation became very tense and resulted in an armed rebellion. On 24 August 1821 Juan O’Donojú, the last viceroy, signed the Treaty of Cordóba with Agustín de Iturbide, leader of the emancipation process, in which the Mexican Empire was recognized as a sovereign independent nation to be ruled by Ferdinand VII of Spain, except in the event of abdication or non-acceptance, in which case other appointments were provided for. Mexico obtained its political emancipation, and an independent government was established. Spain disavowed all acts carried out by the last viceroy, but finally recognized Mexico on 28 December 1836.

19 Although in 1810 several provinces of the Viceroyalty of New Granada and the Captaincy General of Venezuela declared their independence from Spain, the Crown was able to regain control by 1816. In 1819 New Granada and Venezuela declared independence and formed Great Colombia. In 1821 Panama declared its independence, followed by Ecuador in 1822, both joining Great Colombia. In 1830 a first dismemberment took place in Great Colombia; Ecuador and Venezuela left, followed by New Granada; all territories regained their independence except for Panama, which remained part of New Granada (later Colombia) until its independence in 1902.

20 The emancipation movement within the Viceroyalty of Rio de la Plata also started in 1810. Despite the efforts made by Buenos Aires to keep the territory of the Viceroyalty united by inviting representatives of all provinces to participate in assemblies and congresses in which the future of the territory would be discussed, the Viceroyalty was dismembered. Due to the fact that some provinces decided to ignore the invitation, the territory of the Viceroyalty dissolved into four newly independent States: United Provinces of Río de la Plata (later Argentina), Uruguay, Paraguay, and Bolivia.

21 Buenos Aires’s invitation made it clear that provinces were free to determine their own destiny as they deemed suitable to their interests and their happiness. The province of Paraguay separated from the Viceroyalty and established its own government in 1811, maintaining a de facto independence until it was recognized as an independent State by the Argentine Confederation in 1852.

22 The provinces of Alto Perú (Cochabamba, La Paz, La Plata, and Potosí) remained under Spanish rule until 1824. On 6 August 1825 they declared independence and established the Republic of Bolivia, named in honour of the leader of the liberation movement, Simón Bolivar.

23 The Eastern Strip of the Río de la Plata had been disputed by Spain and Portugal for centuries. The latter wanted to prevent Spanish control over both banks of the river and subsequent exclusive navigation. The Treaty of Peace and Territorial Limits between Spain and Portugal ([signed 1 October 1777] in Davenport [ed] 138) granted Spain control over the disputed territory, which lasted until 1814 when the capital city, Montevideo, capitulated after a three-year siege by emancipation forces from Buenos Aires. Two years later Portugal annexed the territory until 1821 (Annexation).

24 In 1825, the intention of the Eastern Strip (‘Banda Oriental’) of the Río de la Plata of rejoining the United Provinces of Río de la Plata gave rise to war with Brazil. Argentina and Brazil resorted to mediation of the British Government, which resulted in the declaration of independence of the Eastern Republic of Uruguay under the guarantee of Argentina and Brazil, later confirmed by the Friendship, Trade, and Navigation Treaty concluded between these two States on 7 March 1856 (Tratado de Amistad, Comercio y Navegación cited in Kohen [ed] 392 note 90). The Viceroyalty of Peru and Captaincy General of Chile declared independence in 1821 and 1818 respectively.

25 Central America was no exception with regards to independence movements; thus the Captaincy General of Guatemala declared its independence on 15 September 1821. Although the new State maintained the administrative divisions established by the Spanish Crown, some provinces were interested in joining Mexico. After some internal struggle, only the Intendancy of Chiapas was incorporated into the Empire of Mexico. The rest of the territory became the Central American Federation, independent from Spain, Mexico, or any other power. This newly independent State was established in 1823; it was formed by five States: Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua. By 1839 the Federation was dissolved; consequently each central American State assumed its sovereignty in 1848. Several attempts to create a United Republic followed with partial or no success.

26 The first Spanish Viceroyalty Hispaniola was later named Island of Santo Domingo. In 1769 the French occupied the western sector of the island, and the boundaries between Spanish and French colonies were established by the Treaty between France and Spain ([done 3 June 1777] in Davenport [ed] 135). Spain withdrew from the island in 1795 and France faced continuous revolutionary movements. The western sector proclaimed independence in 1804 giving birth to the Republic of Haiti. Spain made several attempts to regain control of the eastern sector of the island, which underwent numerous changes and finally declared its independence in 1844 as Dominican Republic, an independence which was eventually achieved in 1861.

27 The Spanish colonies in South America which seceded in the 19th century did not regard themselves as bound by the treaties of Spain (State Succession in Treaties). Neither did third countries consider them bound by treaties concluded by the Spanish Crown. On the contrary, when the independence of the new States was acknowledged by other States new treaties applicable to the territory of the new State were negotiated and concluded.

28 Some political issues arose in the early 19th century with respect to the emerging Latin American States. For instance, while US President Monroe was willing to recognize the new American States, there was a question of opportunity. King Ferdinand VII of Spain was regaining control over most of South America, and the US did not want to interfere with Spanish domestic affairs. It was only on 8 March 1822 that Monroe asked Congress to recognize a group of American Spanish provinces, which was vehemently objected to by Spanish Ambassador Don Joaquin de Anduaga. On 28 March 1822 the US recognized a group of American Spanish provinces which had declared their independence and were exercising it. In his Seventh Annual Message on 2 December 1823 Monroe rejected European colonization on the American continent and proclaimed ‘America for Americans’ (Doctrines [Monroe, Hallstein, Brezhnev, Stimson]).

29 On 7 February 1825 the United Kingdom recognized the independence of Mexico, Colombia, and United Provinces of Río de la Plata (Argentina). Although the United Kingdom followed closely the independence process of most Latin American States, it behaved prudently in regards to recognition so as not to cause detriment to Spanish interests. The United Kingdom did not recognize the right to independence of the South American people, but the fact that those particular former Spanish colonies were independent at that moment.

2. Cession Following the Spanish—American War of 1898

30 In 1868 an insurrection began in an already revolting Cuba. Instability threatened the US economic and strategic interests in the Caribbean. Hence, in 1875 the US warned Spain to either secure peace on the island or face an American intervention. The Spanish were unable to control the insurrection, and with the indefinite continuance of hostilities an intervention was impending. When on 15 February 1898 the battleship USS Maine exploded in Havana harbour, war began between Spain and the US.

31 The Treaty of Peace between the United States and Spain was signed in Paris in 1898. In accordance with its provisions, Spain relinquished all claim of sovereignty over and title to Cuba, legitimizing the American intervention and ceding the island of Puerto Rico and the Philippines to the US, Cuba achieved its independence in 1902, and Puerto Rico became a free associate State of the US.

32 In the context of transfers of territory that followed the Spanish—American War of 1898, a difficult question was the maintenance of concessions granted by Spain. During the negotiations that preceded the peace treaty between Spain and the US, Spain listed the concessions that they suggested should be confirmed. The US affirmed that they had no intention to repudiate any contract found upon investigation to be binding under international law, and that they would deal justly and equitably with respect to contracts that were binding under principles of international law. Although the US recognized its obligation to respect concessions, the interpretation of the scope of such an obligation brought about some problems with the UK.

33 The Cuban Republic, established in 1902, understood that concessions contracted with Spain remained an engagement of that country, and did not pass to the successor. These concessions were regarded by Cuba as a measure of war against the Cuban people.

3. Co-operation among Former Colonies

34 Before colonization, America had been inhabited by hundreds of different peoples, with different languages, religions, and cultures. From that heterogeneous cluster, Spain formed one nation, and left as a legacy a common language and Catholicism. The result may be described as a cultural symbiosis. Latin America is based on shared traditions and interests, thus, generating an American identity.

35 It was this shared conscience which inspired Simón Bolívar to convene in 1826 the Congress of Panama with the idea of creating an association of States in this hemisphere. This was the beginning of the present Organization of American States (OAS). The principles endorsed by the organization grew out of a history of regional co-operation. On 30 April 1948, 21 nations of this hemisphere, mostly former Spanish colonies—except Brazil and the US—met in Bogotá, Colombia, to adopt the Charter of the Organization of American States ([signed 30 April 1948, entered into force 13 December 1951] 119 UNTS 3), which affirmed their commitment to common goals and respect for each nation’s sovereignty. Since then, the OAS has expanded to include the nations of the English-speaking Caribbean as well as Canada.

36 In the 1980s, both external reasons (dependency and vulnerability) and internal ones (instability and changes in government, among others) gave rise to the pursuance of new forms of political co-operation in an attempt to reposition Latin America within the international community. Examples of these new tendencies of regional political co-operation are the heads of States meetings of Quito and Cartagena in 1984, Montevideo in 1985, and finally Rio de Janeiro in 1986. This last meeting led to the creation of a permanent mechanism of political consultation, known as Rio Group, which consists of annual meetings of heads of States and ministers of foreign affairs. The objective of these meetings is to adopt—through direct conversations among governments—joint actions for an adequate and efficient management of the common problems of the region. In 2011, at the 22nd Rio Group summit, the Heads of States created, with the signature of the Declaration of Caracas, the Community of Latin American and Caribbean States (‘CELAC’) as a successor of the Rio Group. It is a mechanism of political dialogue, thought out with the objective of strengthening co-operation and integration in the region.

37 With regard to economic co-operation, some Spanish American former colonies (Argentina, Bolivia, Colombia, Chile, Ecuador, Mexico, Paraguay, Peru, Uruguay, and Venezuela) attempted in 1960 to create a multilateral basis for commercial intercourse across Latin America through progressive reduction and elimination of tariff barriers, creating the Latin American Free Trade Association (‘LAFTA’) by the Montevideo Treaty ([done 18 February 1960, entered into force 1 June 1961] 1484 UNTS 223). At the same time, in Central America the integration process of the region began with the Managua Treaty (General Treaty on Central American Economic Integration [signed 13 December 1960, entered into force 3 June 1961] 455 UNTS 3), which created the Central-American Common Market.

38 Due to the slow product-by-product negotiations imposed by the LAFTA, some member States formed a regional sub-group within LAFTA’s framework by the Cartagena Agreement (Agreement on Andean Subregional Integration [signed 26 May 1969, entered into force 16 October 1969] (1969) 8 ILM 910). The so-called Andean Pact later became the Andean Community of Nations (CAN).

39 LAFTA’s failure to achieve its ends led to its replacement by the Latin American Integration Association (ALADI) in 1980. In 1991, MERCOSUR was created by the Treaty of Asunción (Treaty Establishing a Common Market between the Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay, and the Eastern Republic of Uruguay [done 26 March 1991, entered into force 29 November 1991] 2140 UNTS 257). MERCOSUR is open to State Members of ALADI. At a later stage, Venezuela (2006) and Bolivia (2015) adhered to MERCOSUR.

40 Finally, with the purpose of integrating regional processes developed by MERCOSUR and the CAN, and in order to agree upon a common agenda for the region, the South American Union of Nations, or ‘UNASUR’, was created (South American Union of Nations Constitutive Treaty [done 23 May 2008, entered into force 11 March 2011] 2742 UNTS 287). UNASUR is a South American organization, formed by twelve South American countries to foster integration and unity among them and their people, with the aim of eliminating socioeconomic inequality by prioritizing political dialogue, social policies, education, energy, infrastructure, finance, and the environment.

C. Spain and the United Nations Decolonization Process

41 Spain is not an original member of the United Nations (‘UN’); both the Spanish Civil War (1936–39) and General Franco’s dictatorship during World War II constituted obstacles for Spain’s admission to the UN. In fact, at San Francisco, Potsdam, and London the members of the UN condemned the Franco regime in Spain and decided that as long as the regime remained Spain would not be admitted to the UN.

42 In May and June 1946 a special subcommittee was created by the UN Security Council to conduct an investigation concerning the Franco regime as a potential threat to international peace and security. Based on the result of this investigation the UN General Assembly by Resolution 39 (I) of 12 December 1946 recommended all UN Members to immediately recall from Madrid all ambassadors and ministers plenipotentiary accredited there. This recommendation was revoked by Resolution 386 (V) of 4 November 1950 giving Franco’s government the possibility of re-establishing diplomatic relations and joining the UN’s specialized agencies. Spain was finally admitted in 1955, during the Cold War (1947–91), when, due to Franco’s anticommunist policy, it became part of the group of countries under US leadership.

43 With regard to decolonization, by UNGA Res 66 (I) of 14 December 1946 an ad hoc commission was created to examine the information transmitted under Art. 73 (e) United Nations Charter to the UN Secretary-General, regarding non-self-governing countries under Chapter XI UN Charter.

44 At the time when Spain and Portugal were admitted as new members of the UN, they had both conferred on their colonies the status of ‘overseas provinces’ of the metropolitan State. Therefore an issue arose regarding whether or not these two countries were under the obligation to transmit information called for under Art. 73 (e) UN Charter to the UN Secretary-General. While Portugal upheld it had no obligation (Decolonization: Portuguese Territories), Spain was less tenacious.

45 Since Member States had expressed differing opinions as to the application of the provisions of Chapter XI to territories, whose peoples had not yet attained a full measure of self-government, by UNGA Res 1467 (XIV) of 12 December 1959 a special committee consisting of six members was established to study the principles which should guide the members in determining whether or not an obligation existed to transmit the information called for under Art. 73 (e) UN Charter. By UNGA Res 1541 (XV) of 15 December 1960, the principles were approved and the same day the UN General Assembly recalled with satisfaction the statement of the representative of Spain at the 1048th meeting of the Special Political and Decolonization Committee (‘Fourth Committee’) that its government had agreed to transmit information to the UN Secretary-General in accordance with the provisions of Chapter XI UN Charter (UNGA Res 1542 [XV] [15 December 1960]). In this way the territories of Ifni, Spanish Guinea, and Spanish Sahara began their decolonization process.

46 Portugal, on the other hand, refused to transmit information to the UN Secretary-General or to take any steps to implement UN General Assembly resolutions. Despite its own behaviour, Spain voted against the resolutions urging Portugal to recognize the right to self-determination of peoples in the territories under Portuguese administration (UNGA Res 1913 [XVIII] [3 December 1963]).

D. Spanish Territories in Africa

1. The Protectorate of Morocco

47 The northern area of present Morocco, which had been a protectorate of Spain since 1912, gained independence in 1956, soon after France had recognized full independence of the area subject to French administration. This was a logical consequence of independence movements and the application of the self-determination principle recognized in the UN Charter. However, this case does not fall within the framework of State succession, since the status of protectorate does not entail loss of international personality of the protected State, thus the end of the protectorate does not result in the creation of a new subject of international law (Protectorates and Protected States). Consequently Spain recognized independence, but did not grant it.

2. Ifni, Spanish Guinea, and Spanish Sahara

48 The decolonization of Ifni, Spanish Guinea (now the Republic of Equatorial Guinea), and Spanish Sahara (now Western Sahara) falls clearly within the decolonization efforts of the UN and UNGA Res 1514 (XV) of 14 December 1960. These territories had been declared Spanish provinces, therefore an integral part of Spanish territory. This policy was later rectified, some believe in an attempt at forcing the United Kingdom to relinquish their claim to Gibraltar.

49 The UN dealt with Spanish territories in Africa on various occasions. UNGA Res 2067 (XX) of 16 December 1965 reaffirmed the inalienable right of the people of Equatorial Guinea to self-determination and independence and requested the administrating power to set a date for independence after consulting the people on the basis of universal suffrage supervised by the UN.

50 Spanish Guinea was under Spanish administration from 1877 to 1968. In 1959 two Spanish provinces were established: Río Muni and Fernando Póo; they were considered Spanish territory, comparable to metropolitan Spain. They later merged under the name of Equatorial Guinea and by the Act of Independence (Ley de régimen autónomo) of 20 December 1963, were granted administrative autonomy under a local general assembly and a government council. The first was formed by representatives of the two provinces, and had the initiative in formulating laws and regulations, and the second was in charge of the local administration. Spain’s national government was represented by a commissioner-general, with extensive powers such as sanctioning laws and regulations formulated by the general assembly. Equatorial Guinea had its own budget and nationals born in Muni and Fernando Póo had the same rights recognized to all Spanish citizens pursuant to Spain’s fundamental laws.

51 In 1967, the UN General Assembly recommended the holding of general elections in Equatorial Guinea with UN participation and Spain implemented that request in 1968. The Spanish government elaborated a provisional constitution which was submitted to a referendum. In accordance with Art. 73 (e) UN Charter the Guinean electoral body was comprised of all adults born in Equatorial Guinea and their offspring, provided they were Spanish nationals. As 63% voted in favour of the constitution, presidential elections were held in September 1968. At the same time the Spanish courts authorized Spain to grant independence, which was done unilaterally on 12 October 1968. Notwithstanding on 12 October 1969 an Act of Independence was signed including an agreement establishing a provisional regime which would remain in force until further co-operation agreements were concluded.

52 Concerning Ifni and Spanish Sahara, the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514 [XV] [14 December 1960]) reported on these territories to the UN General Assembly. Resolution 2072 (XX) of 16 December 1965 requested Spain as administrating power to take immediately all necessary measures to liberate the territories of Ifni and Spanish Sahara, and to this end, enter into negotiations on the problems relating to sovereignty presented by these two territories.

53 Ifni had been ceded to Spain by Morocco on 26 April 1860 by the Treaty of Tetuan (Treaty of Peace and Amity between Spain and Morocco). Pursuant to Art. 1 Treaty of Fez (Traité de protectorate [30 March 1912] in MP-L Rivière 120) and the Convention Franco—Espanole of 27 November 1912 (ibid 123), a French protectorate was established in Morocco, with Spain assuming the role of protecting power over the northern and southern (Saharan) zones. Ifni was eventually returned to Morocco by the Treaty of Retrocession of 4 January 1969 (Tratado de Retrocesión 134 Spanish Official State Gazette 8805). The State of Morocco assumed unconditionally all international obligations entered into by Spain for the succeeded territory, granted freedom for Spanish nationals to continue the exercise of labour and commercial activities, assumed public debts and allowed the right to opt for Spanish or Moroccan nationality.

54 The question of Spanish Sahara has been exhaustively discussed in the UN General Assembly and in the Special Committee on the Granting of Independence since 1963, and later on and until now, by the UN Security Council. The first resolutions recommending Spain to implement the right to self-determination were issued in 1964. However, Spain at that time regarded its African territories as provinces of metropolitan Spain, thus not subject to self-determination. In fact Spain prolonged its departure from Spanish Sahara, but finally favoured self-determination for the Sahrawis, against Moroccan—Mauritanian attempts at annexation.

55 In 1966 the UN General Assembly reaffirmed the right of the indigenous people of Spanish Sahara to self-determination and asked Spain, in consultation with the governments of Morocco and Mauritania and any other interested party, to determine the procedures for a referendum under the auspices of the UN (UNGA Res 2229 [XXI] [20 December 1966]). This was reiterated until 1974, when Spain announced to the UN Secretary-General that it would hold a referendum under UN auspices during the first half of 1975.

56 Morocco proposed that the issue be referred to the ICJ—some authors believe this was meant to postpone the referendum. Subsequently, on 13 December 1974, the UN General Assembly approved UNGA Res 3292 (XXIX) of 13 December 1974 containing three mandates: a) the postponement of the referendum, b) the dispatch of a UN visiting mission to Spanish Sahara (constituted by representatives from Cuba, Iran, and Ivory Coast), and c) a request to the ICJ for an advisory opinion.

57 The ICJ in its Western Sahara (Advisory Opinion) accepted the existence of historical legal ties between the Saharan population and Morocco and Mauritania, but declared that they were not of such a nature as to override the Sahrawis’ rights to self-determination and independence. Morocco interpreted the outcome of the ICJ’s opinion as recognition of Moroccan demands and initiated a popular demonstration known as the ‘Green March’ into Western Sahara. The UN Security Council addressed the question, deplored the march and called on Morocco to withdraw from the territory and resume negotiations under the aegis of the UN Secretary-General.

58 After the Madrid Accords (Declaration on Principles of Western Sahara [done 14 November 1975, entered into force 19 November 1975] 988 UNTS 257) had been signed, Spain absolved itself from responsibility for Western Sahara, thus clearing the way for a Moroccan—Mauritanian administration (UNGA, ‘Letter Dated 26 February 1976 from the Permanent Representative of Spain to the United Nations Addressed to the Secretary-General’).

59 Neither the UN Security Council nor the Organization of African Unity (‘OAU’) (African Union [AU]) were able to do much to overcome African rivalries. On 27 February 1976 the Polisario Front (Frente para la Liberación Saguia el-Hamra y Río de Oro) proclaimed a Sahrawi Arab Democratic Republic—recognized by the OAU/AU and a number of African States—and started a guerrilla war against Morocco.

60 On December 1985, with the intention of settling the question of Western Sahara, the UN General Assembly invited the Chairman of the Assembly of Heads of States of the OAU and the UN Secretary-General to make every effort to persuade the two parties in the conflict to negotiate the terms of a ceasefire and the organization of a referendum.

61 On 30 August 1988 Morocco and the Polisario Front agreed to a proposal from the UN Secretary-General and the Chairman of the Assembly of Heads of States of the Organization of African Unity on the framework of their joint mission of good offices. The agreement contained an outline plan to implement those proposals (UNSC Res 658 [1990] [27 June 1990]). A Mission for the Referendum in Western Sahara was established (‘MINURSO’; UNSC Res 690 [1991] [29 April 1991]). The mandate of the mission has been extended several times; the last extension ends on 30 April 2018.

62 The referendum should have taken place by 1992, but disagreements on the census of the electors kept impeding the suffrage. In 1997 a new agreement was reached by Morocco and the Polisario Front, but new obstacles arose. In 2001 and 2007 new plans were elaborated by the UN Secretary-General. Unfortunately these plans have also been unsuccessful. Meanwhile the armed conflict between Morocco and the Polisario Front went on, interrupted by agreements of ceasefire. UN efforts continue in order to achieve a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the UN Charter. UN Secretary-General Ban Ki-Moon in the Report of the Secretary-General on the Situation concerning Western Sahara (UNSC [14 April 2008] UN Doc S/2008/251) emphasized that the consolidation of the status quo is not an acceptable outcome of the current process of negotiations. This has been reiterated throughout the years (eg UNSC Res 2351 [2017] [28 April 2017]); four rounds of negotiations have been held under the auspices of the Secretary-General, the last of which was in 2008, and later rounds of informal talks were held with the intention of holding a fifth round of negotiations, but it did not occur. While the Security Council recognizes the importance of the parties committing to the negotiations process, the lack of success is prolonging the status quo of Moroccan occupation and a decolonization process which has lasted for over 40 years. For the time being, the UN Security Council remains seized of the matter.

3. Ceuta and Melilla and Other Territories

(a) General Situation

63 The Spanish plazas de soberanía in northern Africa, Ceuta and Melilla, the Rocks of Alhucemas and Vélez de la Gomera, and the Chafarinas Islands, have neither been part of the UN list of non-self-governing territories, nor subject to supervision of the Special Committee on the Granting of Independence.

64 Although Ceuta and Melilla are frequently referred to as enclaves, they are a case of discontinuous territory (the territory of the State is interrupted by the territory of other States or by high seas), which differs from the enclave—being a particular case of discontinuous territory—defined as part of the territory of a State completely surrounded by territory of another State (Barberis 57–58).

65 Spain affirms that Ceuta, Melilla, and the Rocks of Alhucemas and Velez de la Gomera have always been part of Spanish territory, even before the existence of Morocco as a political entity; and the Chafarinas were uninhabited islands, which have been occupied since 1847. According to Spain, Spanish sovereignty over these territories has been permanent, effective, and recognized in a number of treaties concluded with Morocco. Melilla was conquered by Spain in 1497 and Ceuta was ceded by Portugal in 1581. According to the Spanish Constitution, they are 2 of the 19 autonomous communities into which the Spanish territory is divided. Morocco, on the other hand, sees this occupation as a vestige of colonialism. Morocco claims the plazas as an integral part of its territory and considers them under foreign occupation. The case of these territories does not appear to fall within the subject of decolonization, for they have remained outside of the UN decolonization process and of the application of the self-determination principle. The situation should be categorized as an unresolved territorial dispute between two sovereign States: Spain and Morocco (Remiro Brotóns et al).

66 At present Ceuta and Melilla are not only an integral part of Spanish territory, but the two cities are also part of the European Union (‘EU’) and their inhabitants participate in the elections to the European Parliament. Nevertheless, Morocco maintains its claim over these territories, which it considers colonial territories that should be an integral part of Morocco. When the Spanish King Juan Carlos I came to Ceuta and Melilla on 11 June 2007, Morocco’s King Mohammed VI strongly condemned this unprecedented visit to ‘the occupied Moroccan territories of Ceuta and Melilla’ and withdrew his ambassador from Madrid in protest. The latter was reappointed on 1 July 2008 after a visit paid by the Spanish Minister of Foreign Affairs to Morocco.

67 In July 2002 a dispute over the island/rock called Isla de Perejil by Spain and Leila/Tura by Morocco erupted. Both Spain and Morocco claim sovereignty over this uninhabited formation (Rocks). Spain bases its title on a Portuguese cession in 1581, a 1668 Spanish—Portuguese treaty (in Davenport [ed.] 157), various sovereignty acts dating back to the 18th and 19th centuries, and a permanent military presence until 1960, followed by subsequent regular inspections which did not provoke Moroccan protest. Morocco, on the other hand, affirmed that Leila was liberated in 1956 when the protectorate of Spain came to an end, and has always been part of Morocco’s territory. On 11 July 2002 part of the Moroccan army peacefully occupied the island, causing an immediate Spanish protest followed by a military invasion in order to restore the status quo ante. The incident threatened to put a strain on the fragile relations between both States; by the mediation of then US Secretary of State Colin Powell an understanding contained in a joint press release of 22 July 2002 came about. The parties agreed to restore the status quo existing before July 2002 and the neutralization of the island, agreeing not to send armed forces and withdraw the existing ones together with all sovereignty symbols. The scope of the Moroccan claim appears to be different after the incident: while Morocco formerly considered the island as part of its territory, as a result of this understanding the island is now considered a territory in dispute.

(b) Difficulties for the European Union

68 Southern EU Member States have become a gateway into European territory and therefore they play a determinant part in implementing EU immigration control policies. Spain’s efforts to control its land and maritime borders with Morocco have increased in resources over the years. A good example is the integrated System for External Surveillance in the Strait and the High Seas that has been implemented since 1999, in order to control maritime frontiers in an attempt to intercept illegal immigrants arriving in small vessels.

69 On 29 September 2005, hundreds of illegal immigrants tried to cross the border between Morocco and the Spanish autonomous cities of Ceuta and Melilla; this massive attempt resulted in numerous casualties and proved the difficulty of controlling land frontiers. These events provoked the reaction of the UN Secretary-General and of the European Parliament. Moreover, the incidents raised questions about the EU’s and Morocco’s migration management. The UN High Commissioner for Refugees pointed out that the focus should not only be on border controls preventing illegal entry into the EU, but also on the compliance with international provisions concerning the protection of refugees (Refugees, United Nations High Commissioner for [UNHCR]).

70 It is interesting to recall that since entering the EU, Spain has enacted a series of regulations by which foreign residents could apply for legal status. Undocumented persons who met a number of requirements could obtain a temporary residence and acquire the right to live and work legally in Spain for a year.

71 While Spain has thus profited from a reduction of illegal employment and a younger work force, EU members contend that immigrants who have been normalized in Spain will move freely into the EU. Some fear that the normalization might encourage other illegal immigrants to enter Spain such as they have previously attempted in Ceuta and Melilla in 2005 and in the Canary Islands in 2006.

72 In order to prevent the irregular entrance of immigrants, controls were reinforced along the border with the financial assistance of EU institutions. Spanish and Moroccan army units were sent to the border. Since then, the Moroccan border and police authorities have increasingly co-operated in managing migrant flows towards the Spanish border. This co-operation surprisingly occurs despite the fact that Morocco claims sovereignty over Ceuta.

73 Notwithstanding all these efforts, new massive attempts to climb the six-metre-high double metal fence are still occurring, the most recent of which took place on 1 January 2017, with a result of several injuries to both migrants and security forces. Immigrants began to gather in informal camps near the border fence, in the forest of Belyounech, Morocco, awaiting an opportunity to attempt to cross the border.

74 Irregular entrants to the EU are held in detention camps, where they wait for a legal decision concerning their expulsion from or acceptance into the EU. Ceuta has its own centre called Centro de Internamiento de Extranjeros (‘CIE’), which is in fact an open centre, with the result that migrants are able to enter and exit the centre and move freely within the city. Ceuta hence works as an intermediate territory as a transitional space where the legal status of immigrants is resolved.

E. Final Remarks

75 By the end of the 19th century Spain had virtually lost all of its colonies in America, either due to emancipation processes or as a result of the 1898 Spanish—American War.

76 Spain had been one of the oldest colonial powers in Europe, and therefore defended its African possessions tenaciously. In fact, at first it pursued a policy of provincialización, considering most African colonial territories as provinces, therefore part of metropolitan Spain. However, with time—consistent with the development of international law—it came to recognize the right of self-determination of the inhabitants of the colonial territories. The result has been the successful decolonization of most Spanish territories, except for the Western Sahara, where, despite Spain’s withdrawal in 1976, the referendum to enable the right of self-determination of the Sahrawi people is still pending.

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