December 17, 2020

Western Sahara’s sovereignty and United States decision

By Inwalomhe Donald

UNITED States decision to recognise Morocco’s sovereignty over West Sahara has no legal impact. This will have no effect whatsoever on the legal nature of Western Sahara. The United Nations doesn’t recognise Morocco’s sovereignty. I firmly reject the Trump administration’s recognition of Moroccan sovereignty over occupied Western Sahara as a bargaining chip for the normalisation of ties with Israel.

The United States believes that an independent Sahrawi State is not a realistic option for resolving the conflict and that genuine autonomy under Moroccan sovereignty is the only feasible solution,” the proclamation states. In a presidential proclamation, the United States recognised “Moroccan sovereignty over the entire Western Sahara territory” and reaffirmed its support for a Moroccan proposal to grant limited autonomy to Sahrawis under overarching Moroccan control. While the Trump administration’s recognition of Moroccan sovereignty over Western Sahara is a big victory for the North African kingdom but United Nations does not.

The recognition is a provocative act that violates international law, and follows other similarly grotesque US unilateral moves such as the recognition of Israel’s illegal annexation of the occupied Syrian Golan Heights and of West Bank settlements. The incoming Biden administration must reverse these lawless moves and return the US to multilateralism and a rules-based order.

Western Sahara, as recognised by the UN, is a Non-Self-Governing Territory that awaits de-colonisation and, therefore, it cannot be considered as part of Morocco. The European Court of Justice has reaffirmed in its rulings that Morocco and Western Sahara are two distinct territories.

Since 1991, the Sahrawi people have been waiting for a referendum on self-determination, as promised by the international community upon the creation of the UN Mission for the Referendum in Western Sahara, MINURSO. However, Morocco and actors coveting for Western Sahara’s abundant resources have blocked its realisation.

Trump’s last-ditch normalisation offensive, which saw Israel sign agreements with three other Arab countries, is fuelling Israel’s impunity to continue denying self-determination and statehood to the Palestinian people and has served to prop-up the repressive regimes of the region with multi-billion dollars arms deals.

President Donald Trump needs be reminded that after a legal disagreement between Morocco and Mauritania over the status of Western Sahara, Morocco took the initiative and asked the International Court of Justice, ICJ, under the UNGA, for an advisory opinion regarding the legal status of Western Sahara before the colonisation of Spain. The ICJ was requested to answer the following two questions: (1) At the time of colonisation by Spain, was Western Sahara (Rio de Oro and Sakia El Hamra) a territory belonging to no one (Terra Nelius)? (2) What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?

While the ICJ was investigating the matter, Spain was requested to pause its planned plebiscite to allow the Court time to reach an opinion. On October 16, 1975, the ICJ submitted its advisory opinion, which unanimously recognized that Rio de Oro and Saguia el-Hamra were not terra nullius before their colonization by Spain. The advisory opinion further acknowledged the following: At the time of Spanish Colonization, there existed legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. They equally show the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritania entity, as understood by the Court, and the territory of Western Sahara (International Court of Justice 1975, Western Sahara: Advisory Opinion).

In diplomatic terms, the ICJ advisory opinion was endorsed as a sharp compromise between the unquestionable right of self-determination and convincing legal ties between Morocco (and Mauritania) and the Western Sahara territory. Thus, despite that the Court’s outcome viewed self-determination as an option for the people of the territory of Western Sahara, acknowledging the existence of legal ties between the sultan of Morocco and some of the other tribes living in the territory’ gave the incentive to King Hassan II to consider what he claimed regarding Morocco’s sovereignty in the region.

In December 1965, the United Nations General Assembly’s first resolution associated with this issue, Resolution 2072 (XX) of December 17, 1965 compelled Spain to decolonise Western Sahara and start talks regarding the sovereignty of the territory (Theophilopoulou 2006). In May 1967, to appease criticism, Spain established a Sahrawi General Assembly known as the Djemaa, giving the appearance that the Sahara was moving toward self-determination (Rockower 2002, 8).

This assembly comprised several Sahrawi tribes; however, a Sahrawi political organization known as the Saharan Liberation Movement, MLS, was created to counter the Djemaa. Mohamed Sidi Ibrahim Basiri was the leader of the movement.

In the two-track approach adopted by the UN over the years on its Western Sahara conflict resolution, the decolonisation issue and process developed into a historically fixed and ideologically rooted narrative of the dispute. In the 1960s and 1970s, during the postcolonial era, the UNGA envisioned full self-determination as a goal for all peoples subject to “alien subjugation, domination, and exploitation”, and intolerable political living conditions it identifies as a denial of a people’s fundamental human rights (United General Assembly 1960, Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly (UNGA) Resolution 1514).

This theory of self-determination presumed that the majority of inhabitants in any colony would be free to choose their future political status, although the integrity of established national boundaries would continue to be respected. The Western Sahara territory has a defined indigenous population, and the indigenous inhabitants of the territory have the exclusive right to self-determination and independence. That right can only be achieved through a referendum of self-determination.

The Security Council decided to extend the mandate of the United Nations peace operation in Western Sahara in October, 2020 for one year, with the voting results announced by video conference, in accordance with the temporary silence procedure adopted for the COVID-19 pandemic.

Adopting resolution 2548 (2020) by 13 votes in favour to none against, with two abstentions (Russian Federation, South Africa), the Council extended the mandate of the United Nations Mission for the Referendum in Western Sahara, MINURSO, until October 31, 2021.  It called upon the parties to the dispute over that territory to resume negotiations without preconditions and in good faith.

Moroccan forces and the Polisario Front, an armed group demanding independence for Western Sahara, have been fighting over the disputed territory – a vast area bordering Morocco, Mauritania and Algeria that was previously under the Spanish control – for decades. In 1991, the United Nations brokered a ceasefire, but a planned referendum on independence was never held. The final status of the territory remains unresolved.