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Ben Saul is a professor of international law at the University of Sydney and the current United Nations Special Rapporteur on human rights and counter-terrorism. On April 23, 2026, he spoke at a public forum organized by the University of Sydney entitled “Western Sahara: Self-determination, Conflict, and the Path Forward.”
During this conference, he described the Moroccan presence in the Sahara as “manifestly illegal” under international law and insisted on the Sahrawis’ right to self-determination. On May 7, 2026, he then published a detailed analysis of his intervention on X and LinkedIn, in which he criticized Security Council Resolution 2797 as well as the recognition of Moroccan sovereignty by a great number of states.
The problem with prose such as Ben Saul’s is not the legal debate itself, but the transformation of an ideological interpretation into absolute truth. It is problematic for a UN expert to speak about the Sahara as if the law were clear, history settled, and the debate over. Yet the Sahara is precisely one of those cases where international law is historical, evolving, and profoundly political.
Ben Saul’s reading of the 1975 advisory opinion of the International Court of Justice is simplistic and reductionist. The ICJ never stated that there existed a distinct Sahrawi sovereignty before Spanish colonization; on the contrary, it recognized the existence of ties of allegiance between Morocco and the tribes of the Sahara.
The Court never spoke of a “Sahrawi people” in the sense of a historically constituted nation — a notion I analyzed as a political and colonial construction in my article “The Myth of a Sahrawi People: When the Spanish Radical Left Adopts a Colonial Construction from the Franco Era,” published by Atalayar on March 4, 2025. The ICJ mainly referred to the consultation of local populations within the framework of resolving the territorial question. That consultation did take place: Morocco consulted the Jemaa, the representative assembly of the Saharan populations, in 1975.
Since then, the participation of Sahrawi populations in the Moroccan political process, as well as their electoral mobilization — with participation rates often exceeding 80%, far above the national average fluctuating between 40% and 55% — testify to a real political dynamic that Ben Saul ignores, trapped as he is in a theoretical and abstract vision of international law.
This is why he maintains a confusion between self-determination and independence. Independence constitutes a zero-sum solution that no longer corresponds to the spirit of United Nations resolutions since 2007, which call for a realistic, pragmatic, and mutually acceptable political solution.
In the process of decolonization, Morocco fully played its historical role by advocating for the liberation of the territory: by waging an armed conflict against the Spanish occupation between 1956 and 1958; by recovering Tarfaya in 1958; by placing the Sahara on the United Nations list of non-self-governing territories in 1963; by recovering Sidi Ifni in 1969; by requesting the advisory opinion of the International Court of Justice in 1974; by organizing a peaceful march of liberation in 1975; by signing the Madrid Accords the same year; by recovering Oued Eddahab in 1979; and by building the defensive wall between 1980 and 1987 to prevent Polisario attacks against Saharan populations.
This entire epic of decolonization is completely absent from Ben Saul’s prose, as he prefers to retreat behind abstract principles detached from historical reality. Morocco is a state that decolonized the Sahara.
Of course, there exists another supposedly anti-colonial narrative promoted by Algeria through the Polisario. But this narrative is largely a product of the Cold War, driven by regional hegemonic ambitions and disconnected from realities on the ground.
As for the Tindouf camps, their reality remains opaque: Algeria still refuses an official census of the populations despite repeated requests from the United Nations. Several fundamental principles of international humanitarian law raise serious questions there, particularly regarding refugee identification, freedom of movement, and camp administration. The de facto delegation of camp administration to the Polisario also raises important legal questions under the Geneva Conventions and the obligations of the host state.
Numerous NGOs and international mechanisms — including the Human Rights Council in Geneva — have in fact repeatedly raised concerns regarding the legality of Polisario management of the camps, the absence of identification and census of the populations, restrictions on political freedoms, and the protection of human rights in the camps.
Therefore, a UN expert who systematically ignores this dimension of the dossier inevitably raises questions regarding the balance and neutrality of his analysis.
United Nations Resolution 1541 refers to several possible modalities for resolving decolonization situations, notably autonomy, integration, free association, and independence. A territory that never constituted an independent state, that never experienced structured political sedentarization, whose judges and governors appointed by Moroccan sovereigns since the Middle Ages had to remain itinerant in order to administer nomadic tribes, and that never developed the notion of a “people” in the modern legal sense of the term, cannot legally claim independence on the same basis as a territory possessing a pre-colonial state historicity.
Despite the absence of a clear legal basis for a claim to independence, Morocco proposed an autonomy plan in response to the United Nations Security Council’s call for a “realistic, pragmatic, durable, and mutually acceptable political solution.” Contemporary international law increasingly favors negotiated solutions and political compromises rather than rigid decolonization schemes inherited from the 1960s, especially given that the decolonization process of the Sahara was initiated by Morocco itself and gradually consolidated through a complex historical and diplomatic dynamic.
It is surprising that Ben Saul seems to ignore that the referendum project collapsed for reasons perfectly known to the United Nations itself. The Polisario systematically refused to consider eligible to vote numerous Sahrawis who had fled northward during Spanish and French military operations, particularly during Operation Écouvillon in 1958.
What Ben Saul today presents as an alleged “transfer of civilian populations” within the meaning of Articles 4 and 49 of the Fourth Geneva Convention actually concerned Saharan populations displaced by colonial war and therefore possessing a legitimate right to participate in the referendum process.
At the same time, the Polisario and Algeria were accused by numerous observers considered neutral and familiar with the tribal and demographic realities of the region of having artificially expanded the electorate by integrating Sahelian and Tuareg nomadic populations into the Tindouf camps in order to increase the number of voters potentially favorable to independence.
After the identification phase conducted by MINURSO, tens of thousands of appeals were filed concerning voter eligibility. The United Nations itself eventually recognized the practical and political impossibility of processing all these disputes within reasonable timeframes.
It was precisely this legal, demographic, political, and logistical deadlock that gradually led the international community to consider the referendum difficult to implement and to favor, from the 2000s onward, a negotiated and mutually acceptable political solution.
Ben Saul attempts to transform a contested academic assertion into a quasi-legal certainty of a doctrinal, even ideological nature. Morocco is not an “occupying power” in the Sahara, unless one adopts a historically strange reading according to which the Almoravid presence in the eleventh century — inaugurating a continuity of Moroccan political, religious, commercial, and dynastic influence in the Western and Eastern Sahara until the Spanish and French colonial interventions of the late nineteenth and early twentieth centuries — would itself constitute an “occupation.”
Moreover, the United Nations Security Council has carefully avoided, for decades, officially using the term “occupying power” in its resolutions concerning the Sahara. This terminological caution is not accidental: it precisely reflects the legal and historical complexity of the dossier.
Ben Saul thus adopts a militant doctrinal reading rather than a faithful reading of the actual institutional practice of the United Nations. Yet academic activism often tends to produce rigid theoretical constructions disconnected from the historical, sociological, tribal, geopolitical, and political realities that have concretely shaped this conflict for decades.
Real international law is not an abstract liturgy recited from an amphitheater. It is practiced through history, geopolitical stability, the interests of populations, power relations, negotiation, treaties, customs, state practice, and effectiveness.
In the Moroccan Sahara, reality on the ground is not fiction: colossal investments, job creation, infrastructure, economic and cultural renaissance, successful sedentarization, effective administration, regular elections, human rights monitoring mechanisms, growing recognition of Moroccan sovereignty by numerous states, the opening of around thirty consulates, and the integration of the territory into the Sahel-West African space through Atlantic initiatives, the Nigeria–Morocco gas pipeline, and the logistics corridor linking the Sahel to the Atlantic Sahara.
Ben Saul should also recognize that this conflict cannot be understood without its geopolitical dimension. As seen above, Algeria plays a central role, driven by regional rivalries, Cold War legacies, and power dynamics that go far beyond the purely legal sphere. The Sahara is not a theoretical laboratory designed to satisfy abstract ideological constructions.
Ultimately, the real problem is not the existence of a legal debate. The problem lies in the refusal to accept the complexity of reality. International law is not a binary theology. Either one denies historical, sociological, and political reality in a form of legal negationism, or one transforms an ideological reading of law into revealed truth — which belongs more to militant dogmatism than to a rigorous and honest defense of international law.
