Jacob Mundy
PhD Candidate, Institute of Arab and Islamic Studies, University
of Exeter
Western
Sahara: The ‘Question’ of Sovereignty
The Western Sahara conflict is often described as a territorial dispute
that pits Moroccan irredentist claims to the territory against the
indigenous Sahrawi population’s countervailing desire to create an
independent state there. From 1997 to 2004, James Baker, the former
U.S. Secretary of State, mediated this issue, which has been on the
Security Council’s agenda since 1988 and subject to a cease-fire
monitored by the UN Mission for the Referendum in Western Sahara since
1991. Shortly after he resigned his position as Personal Envoy of the
UN Secretary-General to Western Sahara, Baker, in an interview with the
U.S. with the U.S. public television program Wide Angle, described the
conflict in the following terms:
This issue is really not unlike the
Arab-Israeli dispute: two different peoples claiming the same land. One
is very strong, one has won the war, one is in occupation [i.e.,
Morocco] and the other is very weak [i.e., Polisario].
Ahead of recent negotiations between Morocco and Polisario in
Manhasset, New York, the UN Secretary-General, Ban Ki-moon, likewise
wrote,
If the negotiations [in Manhasset] are
to lead to a positive outcome, both parties must recognize that the question of sovereignty is, and
always has been, the main stumbling block in this dispute, and
that it is in this highly sensitive area that a solution will need to
be found’ (UN Security Council document S/2007/385, paragraph 13,
emphasis added)
While such descriptions of the Western Sahara conflict are technically
accurate, they elide over a very important fact. With respect to
Western Sahara, there is no ‘question’ of sovereignty. The landmark
1975 opinion of the International Court of Justice (ICJ) on Western
Sahara concluded that the indigenous people of Western Sahara, at the
time of Spanish colonization in 1885, constituted the sovereign power
in Western Sahara. This is the legal basis of Western Sahara’s right to
self-determination, which Morocco has attempt to block since taking the
territory from Spain in 1976.
To justify these claims, I will simply summarize the arguments of the
Court and Morocco as found in the ICJ’s Western Sahara Advisory Opinion of
1975. From this reading of the ICJ’s opinion, this paper will make two
interlocking conclusions that are important when analyzing and
mediating the Western Sahara conflict: (1) Western Sahara legally
belongs to the native people of the territory as the sovereign power
and (2) Morocco’s occupation of Western Sahara is a blatant violation
of the UN Charter’s prohibitions against aggression and forced
annexation.
Western Sahara: No Man’s Land?
The ICJ opinion on Western Sahara was (ironically, in hindsight)
requested by Morocco in 1974, shortly after Spain declared its intent
to hold a referendum on independence. On September 30 of that year,
Morocco put a request to the UN General Assembly. Morocco wanted a
binding decision of the World Court as to whether or not Spain had
occupied Moroccan territory when it established a colony in 1885.
Mauritania, having also raised a claim on Spanish Sahara, backed
Morocco’s request. Spain, however, would not submit to binding
arbitration. Instead, Madrid would accept an advisory opinion on the
question of Western Sahara in the context of the UN charter and
applicable resolutions.
So on December 13, 1974, the United Nations General Assembly passed its
resolution 3292, which requested an advisory opinion of the ICG on the
following questions:
I. Was the Western Sahara (Rio de Oro
and Sakiet El Hamra) at the time of colonization by Spain a territory
belonging to no one (terra nullius)?
If the answer to the first question is in the negative,
II. What were the legal ties between this territory and the King of
Morocco and the Mauritanian entity?
The ICJ listened to arguments from Morocco, Mauritania, Spain and
Algeria in the summer of 1975.
The first hurdle that the Court had to clear was to determine whether
or not Western Sahara was a ‘no man’s land’ at the start of Spanish
colonization in 1885.
To this first question, the Court quickly answered ‘No’. Western Sahara
was not a No-Man’s-Land. Western Sahara belonged to a people, but it
was neither Morocco nor Mauritania. Based on all the evidence, the
Court found that the lands were
inhabited by peoples which, if nomadic,
were socially and politically organized in tribes and under chiefs
competent to represent them.
The fact that Spanish colonial officials had made agreements with these
indigenous inhabitants further invalidated any suggestion of terra nullius (ICJ opinion, para.
81-3).
In other words, the ICJ had determined that Western Sahara had belonged
to the Western Saharans at the time of colonization. This is an
important point to remember. The ICJ had determined that the native
Sahrawis were the sovereign power in Western Sahara before hearing Morocco’s arguments.
The Court was able to proceed to the second question not because
Morocco or Mauritania ever held sovereignty over Western Sahara but in spite of it.
However, under its General Assembly mandate the Court had to give
Moroccan and Mauritanian claims a fair hearing.
First, however, the Court had to determine the meaning of ‘legal ties’.
In this case, the ICJ decided that it was looking for legal ties ‘as
may affect the policy to be followed in the decolonization of Western
Sahara’. The onus was on Morocco and Mauritania to prove that their
‘legal ties’ to Western Sahara were sufficient enough to deny the
Sahrawis sovereign right to self-determination.
The Moroccan Case for ‘Internal’
Recognitions of Sovereignty over Western Sahara
Morocco’s presentation to the ICJ had four major points. Morocco’s
argument began with a claim of ‘immemorial possession’ dating from the
Islamic conquest of North Africa over thirteen hundred years ago.
Remarking on this claim, the Court was dismissive: The ICJ felt that
the ‘far-flung, spasmodic and often transitory character of many of
these events’ rendered ‘the historical material somewhat equivocal as
evidence of possession of the territory.’
The second claim presented by Morocco’s jurists was an assertion of
‘geographical continuity’ between their nation and Western Sahara. On
this point, Morocco cited an ICJ precedent, the Legal Status of Eastern Greenland,
where Denmark’s possession of a part of Greenland translated into
sovereignty over the whole. The Court, however, did not buy this
argument because, as had already been established, Western Sahara was,
in 1885, populated by a highly organized people. In the case of
Greenland, on the other hand, it status as terra nullius was fundamental to
the Court’s opinion in favour of Denmark. The ICJ not only found
Morocco’s claim to geographical continuity ‘somewhat debatable,’ but
was unimpressed with Morocco’s ‘indirect inferences drawn from events
in past history’ (ibid.: para. 90-3).
The third and fourth aspects of Morocco’s case were, what it termed,
evidence for ‘internal’ and ‘external’ displays of Moroccan sovereignty
over Western Sahara. Regarding the former, the Moroccan delegation
explained the nature of the pre-colonial Moroccan state. The ‘Sherifian
State,’ according to the Moroccan delegation, was such that whether or
not certain social groups fell under the direct control of the central
power of the Sultan, all groups acknowledged his ‘spiritual authority’
as a descendant of the Prophet Mohammed (al-sharif) and the commander of the
faithful (amir al-mu’minin).
The pre-colonial Moroccan state not only included the lands under the
formal control of the sultan (bilad
al-makhzan) but also lands outside of it (bilad al-siba) where
his spiritual authority was still alleged supreme. ‘Because of a common
cultural heritage,’ the Moroccan delegation argued, ‘the spiritual
authority of the Sultan was always accepted.’ (Although it is not
mentioned in the Court’s opinion, the Moroccan assertion was that
Friday prayers were always said in the name of the Sultan, whether in
the bilad al-makhzan or the bilad al-siba.)
While the ICJ allowed this fluid conception of sovereignty, it
nevertheless found Morocco’s empirical backing unsatisfactory. Indeed,
some of the ‘historical evidence’ seen by the Court suggested that
Morocco could not demonstrate sovereignty within parts of southern Morocco,
forget Western Sahara. As the ICJ commented, the southern region of
Morocco between the Sus and the Dra‘a rivers (just north of Western
Sahara) was in ‘a state of permanent insubordination and part of the
Bled Siba.’ This, the Court felt, ‘implies that there was no effective
and continuous display of State functions even in those areas to the
north of Western Sahara’ (para. 94-7).
The Moroccan case also attempted to demonstrate that Western Sahara had
‘always been linked to the interior of Morocco by common ethnological
cultural and religious ties’, which were severed by European
colonization. The Moroccan delegation claimed, ties of allegiance
between the Moroccan Sultan and certain Saharan leaders (qa’ids), particularly of the Tiknah tribal confederation, whose
ranges traditionally spread from the region of the Nun river in
southern Morocco to the Saqiyah
al-Hamra’ region in northern Western Sahara. The Court, however,
felt that the evidence presented ‘appears to support the view that
almost all the dahirs [decrees by the Sultan] and other acts concerning
caids [qa’ids] relate to areas
situated within present-day Morocco itself’ and therefore ‘do not in
themselves provide evidence of effective display of Moroccan authority
in Western Sahara.’ The ICJ added that none of the evidence was
convincing enough to conclude that the Moroccan sultan had imposed or
levied taxes in Western Sahara.
The Moroccan delegation then highlighted the career of Shaykh Ma’
al-‘Aynayn, a recognized and powerful leader in the westernmost Sahara.
Ma’ al-Aynayn became the personal representative of the Moroccan sultan
in the late nineteenth century and led resistance movements against
colonial domination. The Court, however, was not convinced that Ma’
al-Aynayn was always acting in Moroccan interests. ‘As to [Shaykh Ma’
al-‘Aynayn],’ the Court noted, ‘the complexities of his career may
leave doubts as to the precise nature of his relations with the
Sultan.’ Indeed, history suggests that Ma’ al-‘Aynayn led anti-colonial
resistance movements to take the Moroccan throne, not to restore it.
The Court was well aware of this: ‘Nor does the material furnished lead
the Court to conclude that the alleged acts of resistance in Western
Sahara to foreign penetration could be considered as acts of the
Moroccan State.’
Most important of all, the Moroccan team noted that King Hassan I
personally visited parts of Western Sahara in 1882 and 1886, where some
Saharan tribes reaffirmed their ties of allegiance (baya‘ah) to the Sultan. Yet Hassan
I’s expeditions to the south before colonial domination, the Court
pointed out, ‘both had objects specifically directed to the Souss [Sus]
and the Noun [Nun],’ well north of Western Sahara.
Though the ICJ remained unconvinced of ‘Morocco’s claim to have
exercised territorial sovereignty over Western Sahara,’ the Court did
not ‘exclude authority over some of the tribes in Western Sahara’
(i.e., Tiknah tribes). This
claim, however, did not extend to the two Rgaybat confederations, the
most dominant in Western Sahara by population and range, ‘or other
independent tribes living in the territory’. So far, ‘even taking
account of the specific structure of the Sherifian State,’ the Court
could not find ‘any tie of territorial sovereignty,’ nor could it
believe that Morocco had ‘displayed effective and exclusive State
activity in Western Sahara.’ The only thing that the Court found, at
that point, was that ‘a legal tie of allegiance had existed at the
relevant period between the Sultan and some, but only some, of the
nomadic peoples of the territory’ (para. 99, 103-7).
The Moroccan Case for External
Recognition of Sovereignty over Western Sahara
The fourth and most important aspect of the Moroccan case was claims of
international or ‘external’ acknowledgement of sovereignty over Western
Sahara. This final part of the Moroccan argument was based upon
treaties between the Moroccan sultan and governments Spain (1767 and
1861), the United States (1836) and Great Britain (1856). All of these
‘shipwreck’ treaties dealt with the safety and recovery of sailors and
cargo. Morocco also presented an 1895 treaty with Great Britain, which
pertained to the lands between the Dra‘a river (in Morocco) and Cape
Boujdour (Western Sahara); an ‘alleged’ 1900 protocol of the 1860
Treaty of Tetuan with Spain; and a Franco-German correspondence in 1911
(para. 108).
The Moroccan delegation argued before the Court that the eighteenth
article of the 1767 Spanish-Moroccan Treaty of Marrakesh recognized the
Moroccan sultan’s ability ‘to have the power to take decisions with
respect to the ‘Wad Noun and beyond’.’ Yet the Spanish text of the
treaty, which differed from Morocco’s Arabic version, stated, rather
unambiguously, that the Moroccan sultan
‘refrains from expressing an opinion
with regard to the trading post which His Catholic Majesty wishes to
establish to the south of the River Noun, since he cannot take
responsibility for accidents and misfortunes, because his domination [sus dominios] does not extend so
far’. (para. 109-10; brackets in original)
To further authenticate the Spanish version of the Treaty, the Madrid’s
delegation provided relevant diplomatic exchanges to the Court.
Moving closer to the time of Spanish colonization, the Court heard
arguments over a shipwreck clause (Article 38) of the 1861
Hispano-Moroccan Treaty of Commerce and Navigation. The Moroccan
delegation argued that Article 38 was explicit Spanish recognition of
the Sultan’s sovereignty over Saharan tribes, later exercised in the
safe delivery of the sailors back to Spain in the case of the vessel
Esmeralda, taken captive after a shipwreck 180 miles south of the Nun
river. The Spanish delegation, however, provided documents showing that
it was not the Moroccan sultan’s influence but rather the actions of
‘Sheikh Beyrouk,’ a prominent local leader (qa’id) in the Nun, who had freed
the sailors by negotiating directly with the Spanish Consul at Mogador
(now Essaouira). The Court quickly came to the realization that the
1861 Treaty and Esmeralda case did not ‘warrant the conclusion that
Spain thereby also recognized the Sultan’s territorial sovereignty.’
Instead, Morocco’s argument only reaffirmed what the Court had already
determined: the Moroccan sultans exercised ‘personal authority or
influence’ on Tiknah qa’ids of the Nun. The Court, however, was clear
in that this should not ‘be considered as implying international
recognition of the Sultan’s territorial sovereignty in Western Sahara’
(para. 112-18).
The next piece of evidence presented to the Court was an 1895
Anglo-Moroccan agreement. Morocco claimed this as proof of British
recognition of the Sultan’s authority as far south as Cape Boujdour in
Western Sahara. The ICJ, however, felt that Morocco’s interpretation of
the agreement was ‘at variance with the facts as shown in the
diplomatic correspondence,’ and that ‘the position repeatedly taken by
Great Britain was that Cape Juby [Tarfaya, present-day Morocco] was
outside Moroccan territory.’ Far from proof of sovereignty, the Court
described the 1895 Treaty as a British promise ‘not to question in
future any pretensions’ of the Moroccan sultan’s in that area. It was
not, the Court made clear, ‘recognition by Great Britain of previously
existing Moroccan sovereignty over those lands [i.e., Tarfaya,
Morocco]’ (para. 119-20).
Regarding the 1860 Treaty of Tetuan, the Moroccan delegation entered
into evidence an additional protocol on the enclave of Ifni, allegedly
signed in 1900. Yet the Spanish delegation denied the protocol’s
existence, and so the Court could not consider it.
The last piece of evidence in the Moroccan case for externally
recognized sovereignty was a 1911 Franco-German understanding, which
suggested that the region of Saqiyah al-Hamra’ (northern Western
Sahara) was a part of Morocco, even if Río de Oro (southern
Western Sahara) fell outside. The Spanish delegation, however, pointed
out that the 1904 and 1912 Franco-Spanish Conventions, which had
established the colonial borders between Spanish Sahara, Mauritania,
Morocco and Algeria, unmistakably recognized Saqiyah al-Hamra’ as
falling outside of Morocco’s control. The Court ultimately did not see
the 1911 exchange of letters as much more than an acknowledgement of
France’s ‘sphere of influence’ rather than as ‘constituting recognition
of the limits of Morocco’ (para. 121-7).
The ICJ’s Final Opinion
From the four arguments the Moroccan delegation had made before the ICJ
(immemorial possession, geographical continuity, internal displays of
sovereignty and external displays of sovereignty), the Court could not
find ‘any legal tie of territorial sovereignty between Western Sahara
and the Moroccan State.’ This finding was reiterated with respect to
both Mauritanian and Moroccan claims: ‘the materials and information
presented to [the Court] do not establish any tie of territorial
sovereignty between the territory of Western Sahara and the Kingdom of
Morocco or the Mauritanian entity [i.e., Bilad Shinqiti].’ The Court
acknowledged that there had been ‘a legal tie of allegiance between the
Sultan and some, though only some, of the tribes of the territory’
(i.e., Tiknah sub-groups).
Yet in its final conclusion, the Court explained the significance of
these minimal ‘legal ties’:
Thus the court has not found legal ties
of such a nature as might affect the application of resolution 1514
(XV) in the decolonization 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. (para. 129, 162)
The sixteen judges voted 14 to 2 against Morocco and 15 to 1 against
Mauritania. In both cases, the dissenting vote was an ad hoc judge appointed by Morocco
under a special ICJ rule. Yet in the case of Morocco, the other
dissenting voice felt that the Court should have rejected Morocco’s
claims more vehemently.
Indeed, hours after the opinion was read on 16 October 1975, King
Hassan took the Court’s caveat -- there had existed some ties between
the Moroccan monarch and some of the Tiknah
tribes -- and announced to the world that Morocco would march 350,000
civilians into Western Sahara whether Spain left or not. In this game
of chicken, it was Madrid who flinched. Almost a month after the ICJ
declared its support for Western Saharan self-determination, Spain
announced on 14 November that it soon leave Western Sahara, handing it
over to Morocco and Mauritania. The fact that Morocco
deliberately misconstrued the ICJ opinion to justify an invasion of the
Spanish controlled Western Sahara, is a flagrant contravention of the
UN Charter, which explicitly prohibits the expansion of territory by
force. Morocco’s major crime in Western Sahara is not simply a
thirty-three year denial of self-determination for the Western
Saharans, but more importantly, a pre-meditated act of aggression
almost without parallel.
Conclusion
‘Realism’ in international affairs, as opposed to ‘Liberalism’ or
‘Idealism’, attempts to achieve two contradictory aims. On the one
hand, realism claims to accurately analyze ‘the way things really are’
based upon two fundamental concepts: interests and power. On the other
hand, realism is also the language of diplomacy. In the name of
‘objectivity’ (read: neutrality), this kind of realism values
descriptions that are either non-offensive or the least offensive
possible. In the case of Western Sahara, we can see clearly how realism
as a kind of diplomatic etiquette is incompatible with realism as an
accurate description of international politics. While it is true that
both Morocco and Polisario have both launched claims to Western Sahara
and both claim sovereignty over Western Sahara, it is not true that
both claims are equal. The major defect of realism is that it does not
often correspond with reality, whether historical reality or
contemporary reality.
In recent months, the claim to realism has been (ab)used by officials
of the U.S. government who now argue that a solution to the conflict
based upon respect of self-determination is not feasible. The major
reason being that Morocco will not accept any solution that could lead
to Western Sahara’s independence nor will the Security Council (read:
France and the United States) force Morocco to accept the independence
of Western Sahara through a referendum. The obvious blind spot of this
‘realist’ argument is the existence and legitimacy of Western Saharan
nationalism. To assume that the best solution to Western Sahara is to
take the mutually exclusive positions of the parties and divide in half
is to ignore history and present realities.
Recently retired lead UN negotiator to Western Sahara Peter Van Walsum
(Baker’s replacement) recently acknowledged that Polisario is in the
legal right. The problem, as Van Walsum explained, is that France and
the United States are not willing to force Morocco to accept anything
Morocco does not like. But the Security Council is not wise King
Solomon. They should realize that Morocco’s willingness to have the
baby metaphorically cut in two -- in the name of ‘autonomy’ -- reveals
the real mother of Western Sahara. If the Sahrawis refuse to share
Western Sahara with Morocco, it is because Western Sahara is their
land. Cynical pleas to ‘realism’ will not change this reality.
For the international community, the part that cares about the
fundamental international norms, it is not necessary to reiterate that
Western Sahara is clearly an exceptional country. It is Africa’s last
colony after all. Yet that is not the most important part. The case of
Western Sahara presents a more fundamental challenge to international
order. Morocco’s invasion, occupation and colonization of Western
Sahara is the most-egregious attempt by any country to expand its
territory by force since the end of World War Two. Indeed, it could be
argued that Morocco’s invasion of Spanish Sahara was more intentional
than Israel’s occupation of territories seized after the 1967
Arab-Israeli war. It is true that Morocco is clearly in violation of
the norms governing Non-Self-Governing Territories. But Morocco is even
more clearly in violation of the most fundamental, basic rules
prohibiting aggression and occupation.
The ICJ opinion on Western Sahara is most often cited as proof
definitive that Western Sahara is owed a referendum on
self-determination. However, this claim is based upon a half-reading of
the summary of the Court’s
opinion. A full reading of the Court’s entire opinion shows that the
ICJ was very clear that the sovereign power in Western Sahara was and
is the native Western Saharans. The purpose of a self-determination
referendum in Western Sahara is not to decide between competing
sovereignties, whether Moroccan or Sahrawi, but to poll the Sahrawis as
to whether or not they wish to retain, modify or divest their
sovereignty. We need to stop talking about self-determination as an act
that constitutes sovereignty in Western Sahara. Sovereignty is already
constituted in Western Sahara. As the ICJ said, Western Sahara has
never been terra nullius.
Acknowledgements
An earlier version of this paper was presented at La Cuestión
del Sáhara Occidental en El Marco Jurídico Internacional,
International Conference of the Jurists for Western Sahara, in Las
Palmas, Canary Islands, 27-28 June 2008.
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