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The Art of the Deal or ‘Abandoning’ Self-Determination? US Recognition of Morocco's Territorial Sovereignty over Western Sahara

Published online by Cambridge University Press:  24 June 2022

Christopher J Borgen
Christopher J Borgen*
Affiliation:
Professor of Law, Co-Director, Center for International and Comparative Law at St John's University School of Law, Queens, New York; borgenc@stjohns.edu.
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Abstract

This article considers the recent recognition by the United States of Morocco's territorial sovereignty over Western Sahara. After a review of certain aspects of the history of the dispute over Western Sahara, it focuses on the interaction of arguments based on the recognition and non-recognition of territorial sovereignty with those prioritising the right of self-determination of the Sahrawi people. It concludes that, in as much as the population of Western Sahara has a right to decide its own future, US recognition of Morocco's sovereignty over Western Sahara has undermined key principles of international law.

Keywords

recognitionself-determinationWestern Sahara
Type
Articles
Information
Israel Law Review , Volume 55 , Issue 2 , July 2022 , pp. 127 - 144
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press in association with the Faculty of Law, the Hebrew University of Jerusalem

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Footnotes

I would like to thank Professor Yaël Ronen and the student editors of the Israel Law Review for their excellent comments and editorial work. Any mistakes are my own. The main text of this article was completed in January 2022, prior to Russia's expanded invasion of Ukraine.

References

1 Hugh Lovatt and Jacob Mundy, ‘Free to Choose: A New Plan for Peace in Western Sahara’, European Council on Foreign Relations, 26 May 2021, https://ecfr.eu/publication/free-to-choose-a-new-plan-for-peace-in-western-sahara.

2 Population estimates vary based on whether the number takes into account refugees in other countries, all Sahrawis living in other countries, and/or non-Sahrawi populations that have settled in Western Sahara since 1975. The current total population of Western Sahara, including Sahrawis and those who have moved there, is approximately 600,000: UN Data, http://data.un.org/Search.aspx?q=western+sahara. There is also a separate question that will be discussed below of who should be able to vote in a referendum.

3 Donald J Trump, Trump Twitter Archive, 10 December 2020, https://www.thetrumparchive.com/?searchbox=%22sahara%22.

4 Proclamation on Recognizing Sovereignty of the Kingdom of Morocco over the Western Sahara, 10 December 2020, https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-recognizing-sovereignty-kingdom-morocco-western-sahara (US Proclamation of Recognition).

5 Trump Twitter Archive (n 3).

6 Letter to President Biden re Western Sahara, 17 February 2021, https://www.inhofe.senate.gov/imo/media/doc/20210217%20-%20Inhofe-Leahy%20letter%20to%20POTUS%20on%20Western%20Sahara%20-%20final.pdf.

7 James A Baker III, ‘Opinion: Trump's Recognition of Western Sahara is a Serious Blow to Diplomacy and International Law’, The Washington Post, 17 December 2021, https://www.washingtonpost.com/opinions/2020/12/17/james-baker-trump-morocco-western-sahara-abraham-accords.

8 eg, Lara Jakes and others, ‘Morocco Joins List of Arab Nations to Begin Normalizing Relations with Israel’, The New York Times, 10 December 2020, https://www.nytimes.com/2020/12/10/world/middleeast/israel-morocco-trump.html; Matthew Lee, ‘Israel, Morocco to Normalize Ties; US Shifts W Sahara Policy’, AP News, 10 December 2020, https://apnews.com/article/donald-trump-africa-israel-north-africa-morocco-4279242f6f688d242bad5c7a64e29caf.

9 New York City Bar, Committee on the United Nations, ‘The Legal Issues Involved in the Western Sahara Dispute: The Principle of Self-Determination and the Legal Claims of Morocco’, June 2012, 4. I had previously served as Chair of the New York City Bar's UN Committee from 2006 to 2009, when a precursor to the 2012 report was in its earliest stages; the 2012 report was written after my time on the Committee and I was not directly involved in writing either report.

10 ‘Morocco’, CIA World Fact Book, 25 October 2021, https://www.cia.gov/the-world-factbook/countries/morocco.

11 As quoted in ICJ, Western Sahara, Advisory Opinion, 16 October 1975 [1975] ICJ Rep 12, 25.

12 eg, ICJ, Western Sahara, Pleadings, Vol III, 7–9 (beginning ‘[c]es circonstances ont amené le Gouvernement mauritanien à réaffirmer les liens juridiques qui unissent la colonie espagnole du Sahara occidental à la République islamique de Mauritanie’).

13 UN, Non-Self-Governing Territories: Western Sahara, https://www.un.org/dppa/decolonization/en/nsgt/western-sahara (stating ‘Western Sahara has been on the United Nations list of Non-Self-Governing Territories since 1963 following the transmission of information on Spanish Sahara by Spain under Article 73e of the Charter of the United Nations’); see also Lovatt and Mundy (n 1). Art 73 of the Charter of the United Nations (entered into force 24 October 1945) 1 UNTS XVI (UN Charter) concerns ‘territories whose people have not yet attained a full measure of self-government’.

14 Dawidowicz, Martin, ‘Trading Fish or Human Rights in Western Sahara? Self-Determination, Non-Recognition and the EU-Morocco Fisheries Agreement’ in French, Duncan (ed), Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law (Cambridge University Press 2013) 250, 253Google Scholar.

15 Franck, Thomas M, ‘The Stealing of the Sahara’ (1976) 70 American Journal of International Law 694, 699CrossRefGoogle Scholar.

16 Dawidowicz (n 14) 254. The referral requested answers to the following questions: ‘I. Was 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 Kingdom of Morocco and the Mauritanian entity?’: Western Sahara (n 11) 14.

17 Western Sahara (n 11) 29.

18 ibid 68.

19 ibid 35. Concerning the observation of Moroccan statements in support of self-determination, see ibid 26.

20 ibid 68–69.

21 Report of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (7 November 1975), UN Doc A/10023/Add.5, para 202; see also Franck (n 15) 708; Lovatt and Mundy (n 1).

22 Franck (n 15) 699 (concerning the free choice of local populations).

23 International Crisis Group, ‘Western Sahara: Out of the Impasse, Middle East/North Africa Report no 66’, 11 June 2007, 1 (ICG 2007).

24 Zunes, Stephen and Mundy, Jacob, Western Sahara: War, Nationalism, and Conflict Irresolution (Syracuse University Press 2010) 5–6Google Scholar.

25 Declaration of Principles on Western Sahara by Spain, Morocco and Mauritania, 1975 UNTS 259; New York City Bar Western Sahara Report (n 9) 12–13; Franck (n 15) 714–15; Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press 1995) 216.

26 Lovatt and Mundy (n 1).

27 ibid; see also Zunes and Mundy (n 24) 6; New York City Bar Western Sahara Report (n 9) 14.

28 Dawidowicz (n 14) 256 (quoting the Report by the Secretary General in pursuance of Security Council Resolution 379 (1975) relating to the Situation concerning Western Sahara (8 November 1975), UN Doc S/11874, para 17).

29 Lovatt and Mundy (n 1).

30 Stefan Talmon, Recognition of Governments in International Law with Particular Reference to Governments in Exile (Oxford University Press 1998) 186; New York City Bar Western Sahara Report (n 9) 2.

31 Stephen Zunes, ‘The East Timor Model Offers a Way Out for Western Sahara and Morocco’, Foreign Policy, 9 December 2020, https://foreignpolicy.com/2020/12/09/east-timor-western-sahara-morocco.

32 ICG 2007 (n 23) 1.

33 Jensen, Erik, Western Sahara: Anatomy of a Stalemate? (2nd edn, Rienner, Lynne 2012) 26Google Scholar; New York City Bar Western Sahara Report (n 9) 15–16.

34 UN Security Council (UNSC), The Situation concerning Western Sahara: Report by the Secretary General (18 June 1990), UN Doc S/21360, para 23 (UN Settlement Plan).

35 ibid.

36 With regard to MINURSO, see https://minurso.unmissions.org/mandate.

37 UN Settlement Plan (n 34) paras 24–28; see generally UNSC, The Situation concerning Western Sahara: Report by the Secretary General (19 April 1991), UN Doc S/22424.

38 eg Jensen (n 33) 30.

39 ibid.

40 ibid 4.

41 ibid 49.

42 ibid 49–50.

43 ibid 6.

44 ibid; New York City Bar Western Sahara Report (n 9) 18.

45 UNSC, Report of the Secretary General concerning the Situation in Western Sahara (23 May 2003), UN Doc S/2003/565 (2003 Baker Plan).

46 UNSC Res 1495(2003) (31 July 2003), UN Doc S/RES/1495, para 1.

47 ICG 2007 (n 23) 3.

48 New York City Bar Western Sahara Report (n 9) 18.

49 ‘Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region’, Royal Advisory Council for Saharan Affairs, 19 October 2009, http://www.corcas.com/Default.aspx?tabid=486&ctl=Details&mid=1831&ItemID=12042.

50 ICG 2007 (n 23) 7.

51 ibid.

52 Nicolas Niarchos, ‘How Biden Can Ease Tensions that Trump Stoked in the Western Sahara’, The New Yorker, 10 February 2021, https://www.newyorker.com/news/daily-comment/how-biden-can-ease-tensions-that-trump-stoked-in-the-western-sahara.

53 International Crisis Group, ‘Time for Re-engagement in Western Sahara, Middle East/North Africa Report no 82’, 11 March 2021, 6 (ICG 2021).

54 ibid, especially fn 25.

55 UNSC, Situation concerning Western Sahara: Report of the Secretary General (23 September 2020), UN Doc S/2020/938, para 6 (UN Secretary General 2020 Report).

56 ibid para 5. For Morocco's view see ICG 2007 (n 23) 9–10.

57 UN Secretary General 2020 Report (n 55) para 5.

58 According to the International Crisis Group: ‘On 13 November 2020, Morocco sent troops into the UN-monitored buffer zone to end Polisario supporters’ three-week blockade of the strategic Guerguerat road. In response, Polisario withdrew from the ceasefire and renewed attacks on Moroccan military units’: ICG 2021 (n 53) 1; see generally Niarchos (n 52).

59 UNSC Res 2602 (29 October 2021), UN Doc S/RES/2602, para 4 (emphasis added).

60 ‘Morocco's King Says Western Sahara Status not up for Debate’, Al Jazeera, 7 November 2021, https://www.aljazeera.com/news/2021/11/7/moroccos-king-says-western-sahara-status-not-up-for-debate.

61 Zunes (n 31).

62 Francesca Eremeeva and Nolan Quinn, ‘Diplomatic Dithering over Western Sahara Bodes Ill for Other African Disputes’, Council on Foreign Relations, 4 March 2021, https://www.cfr.org/blog/diplomatic-dithering-over-western-sahara-bodes-ill-other-african-disputes.

63 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 1(1); International Covenant on Economic, Social and Cultural Rights (entered into force 3 January 1976) 993 UNTS 3 (ICESCR), art 1(1); see also Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, UNGA Res 2625(XXV) (24 October 1970), UN Doc A/8082 (1970), Annex (Friendly Relations Declaration).

64 Art 1(2) of the UN Charter (n 13) states: ‘The Purposes of the United Nations are: … [t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace’. The UN reiterated its commitment to self-determination again in art 55: ibid art 55; ICCPR (n 63) art 1; ICESCR (n 63) art 1.

65 ICCPR (n 63) art 1(3); ICESCR (n 63) art 1(3).

66 The ICCPR (n 63) was signed by Morocco on 19 January 1977 with entry into force for Morocco on 3 May 1979: ICCPR information page, UN Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND; the ICESCR was signed by Morocco on 19 January 1977 and entered into force for Morocco on 3 May 1979: ICESCR information page, UN Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4; Ryan Allman, ‘A Case for the Right to Self-Determination in Africa's Last Colony’ (2020) 23 Human Rights Brief 1, 1.

67 eg, UNGA Res 1514(1960) (14 December 1960), UN Doc A/RES/1514(XV)(1960) (stating that ‘[a]ll peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’); Friendly Relations Declaration (n 63) (stating ‘[b]y virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter’); Western Sahara (n 11) 32; see also ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion [1971] ICJ Rep 16, [52]; ICJ, East Timor (Portugal v Australia), Judgment [1995] ICJ Rep 90, [29] (stating that self-determination is ‘one of the essential principles of contemporary international law’ and also that it is an erga omnes obligation); see generally ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] ICJ Rep 403.

68 Crawford, James, The Creation of States in International Law (2nd edn, Oxford University Press 2006) 115–18, 127Google Scholar (describing the various ‘self-determination units’).

69 ibid 115–18, 127.

70 eg, UNGA Res 3458 (10 December 1975), UN Doc A/RES/3458(XXX); UNGA Res 3292 (13 December 1974), UN Doc A/RES/3292(XXIX) (‘reaffirming the right of the population of Spanish Sahara to self-determination in accordance with resolution 1514 (XV)’); UNGA Res 2229 (20 December 1966), UN Doc A/RES/2229(XXI); see also ‘Non-Self-Governing Territories’, United Nations, https://www.un.org/dppa/decolonization/en/nsgt. For an example of Security Council action, see UNSC Res 2602 (n 59) (referring to ‘the self-determination of the people of Western Sahara’).

71 Regarding the 2007 autonomy proposal, see ICG 2007 (n 23) 6.

72 eg UNGA Res 3292 (n 70) (‘reaffirming the right of the population of Spanish Sahara to self-determination in accordance with resolution 1514 (XV)’); Western Sahara (n 11) 35–36.

73 Jensen (n 33) 4.

74 Kosovo (n 67) [82] (stating ‘[w]hether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State is, however, a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question’).

75 UNGA Res 1541 sets out principles regarding obligations of states to non-self-governing territories. Principle IX(b) declares that integration with an existing state ‘should be the result of the freely expressed wishes of the territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage’: UNGA Res 1541 (15 December 1960), UN Doc A/RES/1541(XV); see also Crawford (n 68) 620.

76 See, e.g., UN Secretary General 2020 Report (n 55) para 5 (quoting King Mohammed VI of Morocco).

77 Western Sahara (n 11) 32–33. In certain specific circumstances that do not apply here, such as when the population is not considered a ‘people’ or if the General Assembly has explicitly found that such consultation is unnecessary, the General Assembly may set aside consultation with the local population: ibid 33, [59].

78 Title is based on ‘the vestitive facts which the law recognises as creating a right’: Robert Jennings, The Acquisition of Territory in International Law, with a New Introduction by Marcelo G. Kohen (Manchester University Press 2017) 17.

79 ibid 20.

80 Jennings, Robert and Watts, Arthur (eds), Oppenheim's International Law (9th edn, Oxford University Press 1992) 709–10Google Scholar, s 272. As Marcelo Kohen explains in his introduction to Jennings’ volume, Jennings also added the role of recognition of statehood as the means by which a new state established sovereignty over territory: Marcelo G Kohen, ‘Introduction’, in Jennings (n 78) 8; for Jennings’ discussion, see ibid 21–23, 28.

81 See Annex to the Letter dated 24 September 2004 from the Permanent Representative of Morocco to the United Nations addressed to the Secretary-General (24 September 2004), UN Doc S/2004/760, paras 1–8 (denying the applicability of the law of occupation).

82 Thirlway, Hugh, ‘Territorial Disputes and Their Resolution in the Recent Jurisprudence of the International Court of Justice’ (2018) 31 Leiden Journal of International Law 117, 136CrossRefGoogle Scholar.

83 Franck (n 15) 697–98.

84 Crawford (n 68) 645.

85 The inaugural session of the Conference of the African Heads of State and Government in Cairo 1964 adopted a resolution that ‘SOLEMNLY DECLARES that all Member States pledge themselves to respect the borders existing on their achievement of national independence’: Border Disputes among States, OAU Res AGH/ Res 16 (I) (1964).

86 Nathaniel Berman, ‘Western Sahara, Israel, and the Death of International Law’, Times of Israel, 18 December 2020, https://blogs.timesofisrael.com/western-sahara-israel-and-the-death-of-international-law.

87 Jennings and Watts (n 80) 127, s 38.

88 With regard to the view that recognition decisions are primarily political decisions, see International Law Association, Committee on Recognition and Non-Recognition, ‘Fourth (Final) Report’, Sydney, 2018, 10–11 (especially text in and accompanying notes 53 and 54) (ILA Recognition Committee Fourth Report). I served as a co-rapporteur for the Committee and participated in the drafting of this report.

89 ibid 14.

90 Jennings and Watts (n 80) 130, s 39.

91 See, eg, UNGA resolutions (n 70).

92 Western Sahara (n 11) 26.

93 White House Press Office, ‘Fact Sheet: President Donald J. Trump Has Brokered Peace between Israel and the Kingdom of Morocco’, 11 December 2020, https://trumpwhitehouse.archives.gov/briefings-statements/president-donald-j-trump-brokered-peace-israel-kingdom-morocco.

94 International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), UN Doc A/56/10, art 41(2) (ARSIWA).

95 ibid art 40.

96 ibid art 41, Comment (5).

97 ILA Recognition Committee Fourth Report (n 88) 14–15.

98 ARSIWA (n 94) art 41, Comment (6).

99 ibid art 41(2); ILA Recognition Committee Fourth Report (n 88) 15.

100 UN Charter (n 13) art 2(4); Georg Schwarzenberger, ‘Title to Territory: Response to a Challenge’ (1957) 51 American Journal of International Law 308, 309; Enrico Milano, Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy (Martinus Nijhoff 2006) 104; Kohen (n 80) 7; Thirlway (n 82) 128 (stating ‘[a]cquisition by conquest or debellatio, once a regular international practice, is now excluded by the generally recognized illegality of the use of force’).

101 Jennings and Watts (n 80) 699, s 263 (noting that ‘title by subjugation has always been relatively rare, because victors more usually enforced a treaty of cession’).

102 Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulation concerning the Laws and Customs of War on Land, Martens Nouveau Recueil (ser 3) 461 (entered into force 26 January 1910), arts 42–56; Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 12 August 1949) 75 UNTS 31 (GC I), art 2; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV), arts 2, 27–34, 47–78; see also Jennings and Watts (n 80) 700, s 265; Ralph Wilde, International Territorial Administration (Oxford University Press 2008) 308; Eyal Benvenisti, The International Law of Occupation (2nd edn, Princeton University Press 2004) 3.

103 Regarding Iraq and Kuwait, see ARSIWA (n 94) art 41, Comment (7).

104 Friendly Relations Declaration (n 63); Crawford (n 68) 136.

105 eg, ICG 2021 (n 53) 3 (noting Morocco's consolidation of its control over the ‘majority of Western Sahara’ following the 1975 war and the construction of defensive walls); Zunes and Mundy (n 24) 20–24 (describing Morocco's shift to a defensive strategy using defensive walls to maintain control of territory).

106 Friendly Relations Declaration (n 63).

107 Martti Koskenniemi, From Apology to Utopia (Cambridge University Press re-issue 2005) 284 (italics in original and internal citations omitted).

108 Jennings and Watts (n 80) 706, s 269.

109 Jennings (n 78) 39.

110 ibid (italics in original).

111 By contrast, Sir Hersch Lauterpacht described non-recognition as ‘the minimum of resistance which an insufficiently organized but law-abiding community offers to illegality; it is a continuous challenge to a legal wrong’: Hersch Lauterpacht, Recognition in International Law (Cambridge University Press 1947) 431.

112 Koskenniemi (n 107) 285.

113 Two commentators from the European Council on Foreign Relations summarised what they understand to be the current views of various parties concerning the question of occupation: ‘From an international law perspective, Morocco's presence in Western Sahara is that of an occupying power beholden to international humanitarian law, including the Geneva Conventions. This is the conclusion of the UN General Assembly, the AU, and countries such as Sweden and Germany, which have described Morocco's presence in Western Sahara as an occupation … Morocco's status as an occupying power is not unanimously recognised, however. Rabat has, of course, rejected this characterisation. The European Commission and the Council of the European Union have described Morocco as the “de facto administering power” of the non-self-governing territory – a legal concept that, as the CJEU's advocate general has highlighted, does not exist in international law. The United Kingdom has, meanwhile, described the territory's status and Morocco's presence there as “undetermined”’: Lovatt and Mundy (n 1).

114 Franck (n 15) 694.

115 Baker (n 7).

116 ibid.

117 Russia, for example, made irredentist arguments regarding Crimea.

118 Western Sahara (n 11) 68–69.

119 Franck (n 15) 696.