Self-determination in Western Sahara: A Case of Competing Sovereignties?

By: Maribeth Hunsinger

Western Sahara is a disputed territory in the Maghreb region of North Africa, bordering Morocco, Algeria, and Mauritania. It boasts phosphate and iron reserves, and is believed to have offshore oil deposits. Spain colonized the territory in 1884 and exercised control for over one hundred years, until Morocco wrested de facto control over large parts of the territory.

Some, however, still see Western Sahara as “Africa’s last colony,” with the Kingdom of Morocco exercising colonial power over the native Sahrawi people. No member states of the United Nations (UN) have recognized Moroccan sovereignty. While there remains political support for Morocco’s claim in the West, many countries are increasingly recognizing the legitimacy of the independence claims by the Sahrawi Arab Democratic Republic (SADR).

This piece explores the basis for these respective claims, and in particular the proposition that self-determination in Western Sahara should not serve to decide between “competing sovereignties” but to allow the Sahrawi people to decide whether to retain their sovereignty.

 

The Roots of the Conflict

Spain colonized Western Sahara, and its control over the territory lasted well into 20th Century. In 1965, the UN General Assembly passed its first resolution on the matter, calling for Spain to decolonize the territory. The General Assembly followed this with seven more resolutions between 1966 and 1973, all of which called for a referendum on self-determination.

Self-determination, a core principle of customary international law, refers to the legal right of people to determine their legal status in the international system. A referendum on self-determination would call upon the people of Western Sahara to determine their own political future, whether that be independence or integration with another state (i.e., Morocco).

Spain announced its plans to hold a referendum in early 1975, opening the door to potential Sahrawi independence. However, King Hassan II of Morocco countered that Morocco would not accept a referendum that included the option of independence. Morocco had expressed its claim to the territory since 1957, and proposed submitting the matter for arbitration by the International Court of Justice (ICJ) to determine the legal status of the territory.

 

Interpreting the ICJ Opinion of 1975

The ICJ acknowledged legal ties between the territory and Morocco in a vote of fourteen to two, and legal ties between the territory and Mauritania in a vote of fifteen to one. However, with regard to these ties, the ICJ held in its Advisory Opinion that “the court has not found legal ties of such a nature as might affect…the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.”

The dominant construal of the ICJ opinion is that Western Sahara is entitled to a referendum for self-determination. However, the reference to the “peoples of the Territory” could be further construed in two different ways: as either a mandate for the territory’s current occupants to determine which competing state has sovereignty over the territory, or as a mandate for the SADR to determine how it wishes to proceed with the territorial sovereignty it already possesses.

Some academics, however, argue there is clear Sahrawi sovereignty based on the ICJ opinion. This interpretation rests on a less frequently cited part of the ICJ opinion: “[t]he purpose of a self-determination referendum in Western Sahara is not to decide between competing sovereigns…but to poll the Sahrawis as to whether or not they wish to retain, modify, or divest their sovereignty.” This language does seem to indicate ICJ recognition that the native Sahrawis were legal occupants of the territory prior to Spanish colonization, and that self-determination refers to the will of the Sahrawis.

Pursuing a Referendum of Self-Determination

However, although the ICJ opinion prompted Spain’s withdrawal from Western Sahara, the question of territorial sovereignty persisted. Morocco instigated the “Green March” in which 350,000 unarmed civilians crossed from Morocco to lay claim to the territory. Spain, Morocco, and Mauritania signed the Madrid Accords in 1975 to formally end Spanish presence in the territory. The agreement divided the territory between Morocco and Mauritania.

The Polisario Front, a Sahrawi liberation movement, set up the SADR as a government-in-exile in the refugee camps of Algeria. In response to this movement, Morocco and Mauritania went to war with the Polisario over the issue of Sahrawi independence. Mauritania withdrew from the territory in 1979, leaving Morocco in de facto control over two-thirds of the territory and the SADR in de facto control over the remainder.

In 1988, the UN submitted settlement proposals to Morocco and the Polisario, with the intent of finally coordinating the referendum on self-determination in Western Sahara. These proposals offered that people of contemporary Western Sahara a choice between integration with Morocco or independence. However, the parties unsurprisingly disagreed over the identification of voters for the referendum, creating an impasse. Morocco offered a solution in which the SADR could exercise autonomy under Moroccan sovereignty, but the Polisario rejected this. Even the UN Security Council was unable to agree on a path forward.

In the past decade, the UN has effectively abandoned attempts to organize a referendum for West Saharan self-determination, and has instead encouraged the main parties to the contemporary conflict (Morocco, Algeria, and the Polisario Front) to engage in regional negotiations. By December 2015, Christopher Ross, the UN Secretary-General’s Personal Envoy, declared the negotiation process “stalemated.”

Contemporary Recognition of Sovereign Claims

Despite Morocco’s physical control over the majority of the territory, the SADR has continued to increase its recognition within the international community. The SADR achieved accession to the Organization of African Unity (OAU), which later became the African Union (AU), in 1984. Such recognition has traditionally been considered an attribute of statehood, even if it does not necessarily establish its territorial claims.

That same year, Morocco withdrew from the OAU, maintaining that admission of Western Sahara into the OAU was a violation of the OAU charter because Western Sahara had neither international recognition nor sovereignty. Nevertheless, Morocco requested to rejoin the AU in 2016, and was readmitted in early 2017 after a thirty-three-year hiatus.

Although Morocco has not explicitly accepted an independent Western Sahara, the AU allowed Morocco’s readmission on the basis that Western Sahara will remain a member of the AU. Some states, including Algeria and South Africa, wanted acceptance of Sahrawi independence to be a condition for Morocco’s readmission, but there is no specific provision in the AU charter that could have been leveraged to accomplish this. Moreover, following King Mohammed VI’s “charm offensive” to attain readmission to the AU, twenty-eight member states were reported to have signed a motion for the suspension of the SADR from the AU.

Looking Forward

Morocco’s return to the AU “threatens to create [an] unprecedented split within the membership of the Union.” However, some AU delegates think it will be easier to resolve the issues between Morocco and Western Sahara now that both are AU members.

Morocco remains deeply tied to, and enjoys substantial political support for, its sovereign claim to Western Sahara. Moroccan stability is also a strategic priority for Western countries such as France and the United States, and Western Saharan nationalism can be seen as a threat to that stability.

Nevertheless, the ICJ opinion of 1975, and the increasing political recognition of the SADR, weigh strongly in favor of the Sahrawi right to self-determination over the future of sovereignty in Western Sahara.

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