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Guest Post by: Arpan Banerjee, NALSAR University of Law
Thirty-three years after its withdrawal from the Organisation for African Unity, the predecessor of the present African Union (AU), Morocco was admitted in January as a member state of the pan-African regional body. At the 28th AU Summit held in Addis Ababa, 39 of the 54 members of the African Union voted in favour of Moroccan entry, making it the final nation in Africa to join. Moroccan entry into the AU, however, has been met by resistance from certain major players in the African Union, particularly Algeria and South Africa, due to the Morocco’s involvement in the ongoing dispute in Western Sahara. This piece seeks to analyze the impact of Moroccan entry to the AU on the dispute regarding the statehood of the Sahrawi Arab Democratic Republic (SADR)–the contested territory in Western Sahara. It explores the key question of whether admission to the AU, to which SADR is a member, amounts to recognition of the SADR as a state and creates obligations on Morocco under international law.
Ever since Spain exited the territory in 1975, Morocco has claimed territorial sovereignty and been involved in an armed conflict with the Polisario Front, a political organisation formed in furtherance of Western Sahara’s independence movement against colonial Spain. In 1974, the ICJ exercised its advisory jurisdiction to evaluate the Moroccan claim over Western Sahara and the self-determination of the Sahrawi people. Despite the ICJ concluding that Morocco did not have a valid claim to the territory, Morocco initiated a massive citizens’ march across the border into Western Sahara followed by the consolidation of armed forces in the territory. In the Madrid Accords of November 1975, Spain ceded administrative authority over Western Sahara to Morocco and Mauritania, in response to which the Polisario Front declared Western Sahara to be an independent state known as Sahrawi Arab Democratic Republic (SADR). The armed conflict that followed was finally brought to an end only in 1991 when the UN brokered a ceasefire and created a Settlement Plan towards a referendum. While the referendum and several other elements of the plan have yet to be implemented, the ceasefire has been largely respected.
Exploring Doctrines of Statehood in International Law
A primary point of contention in the Morocco–Western Sahara conflict is that of statehood of the latter, and its recognition in international law. The Sahrawi Arab Democratic Republic has been recognized at various points by 84 states across the world. Subsequently however several states have withdrawn or frozen their recognition. However, such withdrawals are in violation of international law for several states, who are party to the Montevideo Convention 1993, Article 6 of which states that “recognition is unconditional and irrevocable.” While United Nations has classified Western Sahara as a Non- Self-Governing Territory under Chapter XI of the UN Charter, it has been well established and acknowledged by the UN itself, that the United Nations is not the appropriate authority to recognise states in international law.
Further, we may recall that the doctrinal debate on state recognition in international law is itself inconclusive and provides two divergent theoretical positions. The declarative theory of state recognition (See here, page 106) interprets statehood as a ‘fact’ without regard to recognition by other states. This position is best embodied in the Montevideo Convention. As per the declarative theory, an entity that fulfils certain factual criteria has a claim to statehood, and subsequent recognition by the international community is merely an acknowledgement of an already existing fact. Therefore, under this normative framework, Moroccan admission to the AU has little effect on the statehood of SADR, which would instead be determined by the Montevideo qualifications: a permanent population, a defined territory, government, and a capacity to enter into relations with other states. The constitutive theory (See here, page 2), on the other hand, maintains that it is the recognition by other states that creates a new state and endows it with legal personality. New states are established in the international community as subjects of international law by the will and consent of other pre-existing states. In this light, one may be tempted to interpret Moroccan entry into the AU as implicit recognition of the SADR. However, this approach is perhaps flawed for the following reasons.
First, recognition is not normally inferred from the fact that both parties are members of a multilateral treaty such as the UN Charter or the African Union Constitutive Act. Practice shows that many member-states of the UN are not recognized by others. For example, while Israel and several Arab countries were UN member-states, this did not defeat Arab non-recognition of Israel (See here, page 464). Second, there is nothing to specifically suggest that the African Union Constitutive Act supports this doctrine of recognition of states. In the absence of any particular direction provided by the African Union under its Constitutive Act, applying the doctrine of implied recognition would perhaps be incorrect. Recognition is predominantly viewed as a key political instrument in the hands of states and hence the scope of implied recognition must be interpreted narrowly in the context of surrounding circumstances that illustrate an intention to extend recognition (See here, page 464). In this context, Morocco’s explicit denial of SADR recognition despite entry into the AU, is sufficient to elucidate the concerns of applying the theory of implied recognition, as they are displaying a clear intent of non-recognition. Therefore, we may conclude that theories of state recognition in international law are insufficient in providing any conclusion on the impact of Moroccan entry to the AU regarding the statehood of the SADR.
International Obligations Notwithstanding State Recognition
While international law fails to provide us with a conclusive determination of SADR statehood, this does not mean that Moroccan entry to the AU does not alter the normative status quo. Even if it is true that Moroccan entry does not result in state recognition, as the 55th Member of the African Union, Morocco has obligations under the Constitutive Act of the African Union that it owes to each member of the multilateral agreement. In other words, after admission to the AU, all obligations under the Constitutive Act are applicable in relations between the new member (Morocco) and each of the existing members (which includes SADR), independent of their mutual recognition as states in international law. Thus, at a normative level we see the creation of obligations between Morocco and SADR, as mutual members upon Moroccan accession to the AU, where previously no such obligation existed. It is important to remember that Morocco may not validly claim to owe no legal obligations to one particular member-state of a multilateral agreement, in the absence of specific reservations to the Constitutive Act. Neither can Morocco selectively decide for itself which obligations enumerated in the Act it is bound to discharge, and which it may ignore. Accession to the AU therefore means that Morocco is hereinafter bound by all of the AU principles in its relations with each of the AU members, without prejudice to state recognition. Prior to this, Morocco was not bound by any such obligations towards the SADR having left the precursor to the African Union, the Organisation of African Unity, when it accepted SADR as a member.
What is the substantive content of these obligations and principles that are now binding upon Morocco? The answer to this question demonstrates the true impact of Morocco’s entry into the AU. Article 4 of the Constitutive Act, enshrines several principles, including sovereign equality, respect for borders of members of the Union, peaceful settlement of conflict amongst members, prohibition of the use or threat to use force, non-interference in internal affairs, and respect for democratic principles and human rights. Morocco has repeatedly ignored UN resolutions in favour of self-determination and a referendum inclusive of the option for independence in Western Sahara, and has occupied the territory with clear disregard to democratic principles. Morocco’s relationship with Western Sahara is largely similar to that of colonialism. Western Sahara holds some of the largest phosphate reserves in the world, provides access to rich fishing waters, and has vast offshore oil and gas resources. Systematic exploitation of these resources has been the underlying reason behind the Moroccan occupation, which thrives off their export. In December 2016, the European Court of Justice held that EU–Morocco trade agreements did not extend to resources taken from SADR. While such efforts are welcome in the broader context of the dispute, they do not impose substantive obligations on Morocco and its exploitation of SADR resources. However, now having joined the African Union, Morocco is severely constrained at a normative level, as its economic exploitation, military presence, and refusal to accept a full and fair referendum in the SADR, all breach its obligations undertaken upon acceding to the Constitutive Act of the African Union.
Therefore, while Moroccan entry to the AU may not have the effect of recognizing the SADR in light of the inconclusive doctrinal position of international law on state recognition, it imposes a framework of legal obligations under the Constitutive Act that prohibits much of Morocco’s present activities in Western Sahara. In this manner, Moroccan entry to the AU significantly alters the normative status quo in the Western Sahara, and has important legal consequences on the regional conflict.