On Sovereignty over Western Sahara and Why It Matters

Article by Carlos Severo | Illustration by Viola Bartoli

 

On 10 December 2020, the President of the United States signed a proclamation recognizing Moroccan sovereignty over Western Sahara. Through his social media channels, he declared that “Morocco’s serious, credible, and realistic autonomy proposal is the ONLY basis for a just and lasting solution for enduring peace and prosperity!”. It is worth noting that, practically simultaneously, he announced that the Kingdom of Morocco and Israel have agreed to establish full diplomatic relations. If both events are interlinked and were part of a package deal is a question for another time. The focus today is the significance of US recognition of Moroccan sovereignty over Western Sahara. But before that, some context is required.

Historical background

Western Sahara was a former Spanish colony that went through a tumultuous, still ongoing, decolonization process. In the past, Morocco and Mauritania claimed sovereignty over the territory. However, in 1975, the International Court of Justice in its advisory opinion reached the conclusion that the evidence presented did not establish conclusively territorial sovereignty over the territory of Western Sahara by neither the Kingdom of Morocco nor Mauritania. A month after the advisory opinion was published, Morocco instigated the Green March and invaded Western Sahara, escalating conflict with the local independence movement, known as Polisario Front. In response to the recognition of Western Sahara by other African States, in 1984, Morocco left the African Union.

In 1991, a proposal agreed between Morocco and the Polisario Front was backed and endorsed by the Security Council Resolution 690, which established the United Nations Mission for the Referendum in Western Sahara. The aim was to provide a transitional period to prepare a referendum where the people of Western Sahara would decide between independence or joining Morocco. In spite of UN efforts, the referendum was rejected by Morocco in 1992 and has yet to take place.

Regardless of Morocco´s intentions, the fact remains that the international community has recognized the inalienable right of the people of Western Sahara to self-determination in the UN General Assembly Resolution 2711 (XXV). By its very nature, such a right cannot be derogated by human laws, notwithstanding the international community’s lack of consistency with its own commitment.

The recent US arbitrary “resolution” of the Western Sahara issue adds to the already complex situation. Indeed, the decision was not for them to make. Even if it was, under the present circumstances, it is hard to see that it was done with the locals’ best interest at heart. In general, conflicts require their own tailor-made peace process, ideally based on dialogue and significant social participation, to help locals take ownership and to strengthen the legitimacy and commitment to the final agreement. On the contrary, unilateral actions that disregard the context, like the one at hand, tend to raise tensions and spread mistrust, consequently hindering any future attempt towards a peaceful and fair settlement of the dispute.

International Law: theory vs practice

International Public Law has traditionally attempted to regulate the relations among States, usually through a system of customary law. The debate concerning the legality of war (use of force) has been evolving towards preserving peace and valuing human life. In 1868, for the first time in history, countries formally agreed to renounce the use of inhumane weapons. The Declaration of Saint Petersburg set a series of principles on how to conduct war in order to protect humanity from unnecessary pain. In the aftermath of WWI, the Pact of Paris of 1928 prohibited the use of war as an instrument of national policy, meanwhile obliging States to solve disputes through peaceful means. This idealism has been inherited by President Wilson’s League of Nations and the succeeding UN in its foundational Charter.

Although absent in the first, the US took an active role in the creation of the UN. Since then and until recent years, the US was a champion of multilateralism, self determination and human rights. Moreover, Washington’s decision to recognise Morocco’s sovereignty over Western Sahara is clearly against the spirit of the US-endorsed Security Council Resolution 690, effectively pitting the country in breach of its international obligation as a Permanent Member.

While all States are equal under international law, it is a fact that some carry more weight than others. Receiving the support of the White House is a game changer, a precious intangible asset which effectively protects the interest of the receiving State. With its recent move, the US has implicitly legitimised the illegality of Morocco’s actions and by doing so normalised an illegal occupation. President Trump declared it to be the only realistic solution for enduring peace and prosperity, however omitting those who will be left outside this peace and prosperity. Above all, the US, either intentionally or negligently, has failed to evaluate the cost of its actions.

Indeed, the US proclamation is a paramount setback in the pursuit of a more peaceful world. In the last century, conducting a war of aggression had become a criminal act under international law. The recovery of the sovereignty of the Baltic Republics in 1989 proved to the world that a State cannot cease to exist due to the use of force against it. More recently, we have witnessed a superpower like China being subject to the jurisdiction of an Arbitral Tribunal in the case against the Philippines about the South China Sea, seemingly abiding with the Tribunal’s ruling even contesting its legality. Finally, still today, there are countries that are victims of an occupation from a foreign power, like Cyprus or Ukraine. As one could imagine, the US move does not contribute to their legitimate efforts to regain control over the integrity of their territory.

Conclusion

All in all, it is not a first in recent years that a US decision in foreign policy appears to be erratic and irresponsible, as the withdrawal from the Paris Climate Agreement illustrates. It would seem that a big part of the upcoming administration’s job will be to undo the previous undoing carried out by the current administration. If this were to be the case, the President-elect could still successfully do damage control.

The last months of the Trump administration have become a much-ado-about-nothing spectacle. It is said that a person can exert more change in one day in the White House than in any other place in the world; this gives Trump about a month to turn the world upside down, once again. In any case, the fact remains that the US has given its blessing to the use of force as a tool of national policy and acted against the Security Council.

The so-called leader of the free world has aligned itself with the colonial invader instead of standing by those who fight for the opportunity to freely decide their own fate. Has the US lost its raison d’être?

 

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