Historical Ties of Western Sahara to Morocco

Throughout history, Western Sahara has been the strategic depth of the Moroccan State. The rootedness of the Sahara in Morocco is inscribed within uninterrupted continuity, regardless of the ruling dynasty, who many of them originating from Western Sahara. History books overflow with a lot of indications of the ties between Sahrawi tribes and the Moroccan State. These ties had been reflected the concept of sovereignty as it was practiced during the era of Islamic rule and it was also consistent with the pattern of nomadic life in the Sahara, which is characterized by a permanent movement in searching water and pasture, so that it did not allow the establishment of a stable administration. Thus, it was not properly to adopt the concept of territorial sovereignty, as it was developed in Europe after the Treaty of Westphalia in 1648, as a standard to prove or deny the legal ties between Western Sahara and Morocco which also had been developed in a different political, economic and social context.

The history of the Western Sahara confirms that Moroccan Sultans and kings have exercised various forms of authority associated with the internal and external sovereignty over this region. With regard to the internal sovereignty, many historical documents show that the Sultan had practiced functions related to legislative, executive and spiritual authorities. Legislative activities, which were exercised by the sultan, were not limited only to Sultani dahirs (decrees), but it extended to economic activity through the control of trade and production, in particular as regards fishing, the monopoly of which was generally reserved to the Sultan’s subjects, except in the case of special concessions to foreigners; it also extended to the administration of the ports, in order to open and close them to foreign trade, according to the requirements of national policy. The Sultan’s legislative authority also related to raw materials and fiscal matters through the assessment, imposition and collection of taxes and dues[1].

Moroccan Sultans had practiced executive authority in Sahara region through dahirs as they did in the legislative arena. That was how they appointed and dismissed the caids to whom they entrusted responsibilities of government in a region, on a Coast, or over a group of tribes. The caids are, according to the etymological meaning of the term, military commanders who also have administrative functions. That does not mean that the title of caid tended to be an honorary one, as has been alleged. It is a practice in quite a number of countries, in the absence of a centralized authority, to choose persons to govern who have the qualifications which enable them to make their authority felt and carry out their tasks[2]. Morocco submitted to the ICJ in 1975 five of those dahirs that showed the administrative and political affiliation of the Western Sahara with Morocco.

With regard to the external sovereignty, the documents relied upon by Morocco show the international recognition of the Moroccan territorial sovereignty on the Western Sahara. Those documents concern bilateral conventions and treaties to which Morocco held with some States, more especially a treaty with Spain of 1767, and treaties of 1836, 1856 and 1861 with the United States, Great Britain and Spain respectively, provisions of which deal with the rescue and safety of mariners shipwrecked on the Coast of Wad Noun or its vicinity[3]. One of these significant international accords is the Franco-German exchange of letters of 1911 -annexed to the Agreement between France and Germany of November 4, 1911- which expressed the understanding of the parties that “Morocco comprises all that part of northern Africa which is situated between Algeria, French West Africa, and the Spanish colony of Rio de Oro”[4]. Morocco has presented this document as a clear recognition by those Powers of Moroccan sovereignty over the Sakiet El Hamra as an integral part of its territory.

Although, the sovereignty in Islamic history had taken different dimensions generally summarized in the term “spiritual and temporal authority”, the spiritual and religious ties had been its most important aspect. The allegiance (beyâa), based on religious concepts, was expressed by tribes and inhabitants of the Western Sahara to the Moroccan central authority. Religious and spiritual dimensions gave to the allegiance its legal force, and the population’s belief in its obligation guaranteed their respect of its requirements even if the State could not extend its material authority to them. This fact explains why an important number of provinces had for a long time remained subordinate to the central Islamic State despite the absence of any tangible administrative or military aspect of sovereignty that could coerce them into subjection.

The Independence and the Legacy of Colonialism

The declaration of Morocco’s independence in 1956 did not constitute a break with the colonial past because of the continued presence of the Spanish colonization in important parts of Moroccan territory. Since that time, Morocco, based on the continued subordination of the Western Sahara to its territory, has spared no effort to restore gradually its territorial integrity torn apart by multinational colonization, which Morocco had undergone since 1884 when the Spanish colonization started. Morocco had been able to retrieve some parts of its national territory, such as Tarfaya and Sidi Ifni which regained respectively in 1958 and 1969 by a bilateral agreement with Spain, however, Sakia El Hamra and Río de Oro region or what is known in international literature as “Western Sahara”, considered for a long time as a major obstacle to the normalization of Moroccan-Spanish relations, because of the insistence of the Spanish government to settle unilaterally the fate of the province, and also later has been the main obstacle to achieving the Maghreb integration.

In addition to Spain, Algeria tried, during this period by various means, to prevent Morocco to achieve its complete independence and to reintegrate the Western Sahara into Moroccan territory. Algeria has based its position on the principle of uti possidetis (i.e. the principle of the inviolability of borders inherited from colonialism) ignoring the fact that the Western Sahara has never been in the past separated from Moroccan territory. The modern application of the uti possidetis doctrine emerged after the decolonization of Latin America in the early 19th century. The uti possidetis principle is a legal principle provides that successor States accept international boundaries set by a predecessor regime. At the beginning of 20th century, Latin America abandoned the uti possidetis principle because “it was found to be too restrictive on States there in rectifying obvious errors and injustices” and “there was often confusion over the location of provinces and other subdivisions of colonial control and thus over which successor State had the right to the territories in question”, furthermore, “the principle could not be applied to adjacent territories which had been governed under different colonial regimes”[5]. This has always been the attitude of the Moroccan government -amongst others- towards the principle, particularly if it involved the creation of States that, before the colonial experience, had no status in international law[6].

In the African context, the principle of uti possidetis has been adopted implicitly. For example the resolution of the OUA conference of Heads of States and Governments in July 1964 in Cairo, stipulated that all member States “pledge themselves to respect the borders existing on their achievement of national independence”. This statement does not mean in any way that the principle of uti possidetis can be applied in all cases, since it refers only to “national independence” excluding the independence of a part of national territory. Algeria is one of African countries that have hugely benefited from the implementation of this principle and it has strongly defended it because “it is extremely difficult to define a pre-colonial Algerian State with the same territorial extent as is the case with modern Algeria”[7]. It was very difficult during 1960th to settle Morocco-Algerian disputes over some contiguous regions without resorting to the principle of uti possidetis. Although the application of this principle was not equitable for Morocco, but it had demonstrated a great will to make significant territorial concessions in order to create a stable Maghreb. In the case of the Western Sahara issue, although Algeria was anxious to apply the principle in defining an entity different from Morocco in Western Sahara, Morocco had been most unwilling to do so again, if for no other reason than the simple fact that the colonial regimes involved were very different and reflected different colonial approaches rather than any inherent differences in the nature of the contiguous territories involved[8]. 

United Nations Settlement Plans

Before Spanish withdrawal from Western Sahara in 1975, the United Nations had adopted some resolutions concerning the region, especially the Resolution 2072, adopted by the General Assembly on December 16th 1965, in which called upon Spain to end its occupation of Sidi Ifni and the Western Sahara; and the Resolution 2229, adopted by the General Assembly on December 20th, 1966, in which it recommended negotiations for the recovery of Sidi Ifni and called upon Spain to hold a referendum on the issue of the Western Sahara.

The Advisory Opinion given by the International Court of Justice on October 16th, 1975, was a turning point in the modern history of the Western Sahara. The ICJ concluded that Western Sahara at the time of colonization by Spain was not a territory belonging to no-one (terra nullius); and there were legal ties between this territory and both the Kingdom of Morocco and the Mauritanian entity. Despite the disagreement about the interpretation of the ICJ Advisory Opinion, it constituted the international legal framework of all Moroccan initiatives that seek to find a solution to the Western Sahara issue, because it confirmed the existence of the political, legal and spiritual attachment of the inhabitants of the Western Sahara, on the basis of the ties of allegiance (beyâa) shown throughout the history, to the several dynasties which have governed Morocco.

Although, the UN had played, during the cold war era, a very modest role in the question of Western Sahara, immediately after the end of that period, the UN began to play a more active role reflected in some important decisions taken by the Security Council on this issue. This new interaction was observed in the action of the UN to give special importance to the Western Sahara issue by presenting a set of proposals to the parties concerned, as well as by the creation of the UN Mission for the Referendum in Western Sahara (MINURSO) onApril 29th, 1991. This new role of the UN came to be further reinforced by the direct sponsorship of negotiations between Morocco and the Polisario. Within the framework of the revival of the role of the UN in the Western Sahara issue, the Security Council has unanimously adopted Resolution 690 of April 29th, 1991, by which it approved the report of the Secretary General regarding the organization of a referendum of self-determination in the Western Sahara.

Once the UN had noticed the difficulty of putting in practice the 1991 settlement Plan, M. James Baker, the then personal Envoy of the Secretary General,  proposed at the beginning of the year 2001 another project entitled “Framework agreement on the Status of Western Sahara”, known also as “Baker Plan I”. The “Framework Agreement” concluded that the dispute over the Western Sahara is primarily a political issue. Although, it was immediately accepted by the Moroccan government as “a framework for negotiations” because it offered autonomy to the population of Western Sahara within the Moroccan State, Polisario rejected it on the ground that it did not include the possibility of secession of the territory; therefore it has never presented formally to the Security Council.

Convinced of the difficulty of applying the first Plan, the former UN envoy proposed a second Initiative, called “Baker Plan II” in 2003. The Security Council approved in its Resolution 1495 of March 2003 this Plan, which bore the title “Peace Plan for Self-Determination of the People of Western Sahara”, a plan which suffered from many practical difficulties and it was considered, at least by Moroccan government, as a step backwards by proposing again the referendum as a solution of the Western Sahara. Today, the “Baker II plan” seems largely dead, since early 2005 the UN Secretary General has not referred to the plan in his reports concerning the situation in Western Sahara.

Autonomy: a Win-Win Resolution

In order to break out of the impasse of the western Sahara issue and respond to calls that have been regularly launched by the Security Council since 2004 to “the parties and States of the region to continue to cooperate fully with the UN to end the current impasse and to achieve progress towards a political solution”, Morocco submitted in 2007 an autonomy proposal for the Sahara,[9] within the framework of the Kingdom’s sovereignty and national unity. This initiative, according to the official document, “is part of the endeavors made to build a modern, democratic society, based on the rule of law, collective and individual freedoms, and economic and social development. As such, it brings hope for a better future for the region’s populations, puts an end to separation and exile, and promotes reconciliation”[10].

The Moroccan Autonomy Initiative took great care to conform to the principle of self-determination, giving it a special meaning compatible with the specificity of the Western Sahara issue. The concept of autonomy is related to what is known in international law as the “internal self-determination”. This concept refers to the right to exercise political, economic and cultural autonomy within an existing State, and is concretely translated into the establishment of a large control over the political, economic, social and cultural development of the concerned region. In other words, according to Patrick Thornberry “the external dimension or aspect [of self-determination] defines the status of a people in relation to another people, State or Empire, whereas the democratic or internal dimension should concern the relationship between a people and ‘its own’ State or government”[11]. Article 5 of the Moroccan Autonomy Project falls within that perspective insofar as it stipulates that: “(…) the Sahara populations will themselves run their affairs democratically, through legislative, executive and judicial bodies enjoying exclusive powers. They will have the financial resources needed for the region’s development in all fields, and will take an active part in the nation’s economic, social and cultural life”.

The Moroccan Initiative has unanimously been welcomed by the UN Security Council in its Resolution 1754 of April 30th, 2007; a Resolution which expressly applauded the efforts deployed by Morocco “to move the process forward towards resolution”, and described these efforts as being “serious and credible”. This praise of the Moroccan Initiative has since then been reiterated, including subsequent Resolutions adopted by the Security Council on the situation concerning Western Sahara; namely, Resolution 1813 of April 30th, 2008, Resolution 1871 of April 30th, 2009, resolution 1920 of April 30th, 2010, and Resolution 1979 of April 27th, 2011.

Granting an autonomy Statute for the Western Sahara is right now the equitable and realistic solution of the issue, because it aims at achieving a political resolution based on a middle ground “no winner no loser” away from zero-sum referendum or so-called “winner-take-all” approach.

[1] ICJ Advisory Opinion of October 16th, 1975, on the Western Sahara, Individual Opinion of Fouad Ammoun (Vice-President), p.84/93. http://www.icj-cij.org/docket/files/61/6204.pdf

[2] Advisory Opinion, Individual Opinion of Fouad Ammoun, op.cit., 85/93.

[3] For further details about these conventions see the ICJ Advisory Opinion of 16 October 1975 on the Western Sahara, p.51.

[4] Advisory Opinion, op.cit., para. 124, p.41.

[5] George Joffe, “The International Court of Justice and the Western Sahara Dispute”, In Richard Lawless and Laila Monahan (eds.), War and Refugees: the Western Sahara Conflict (London and New York:  Pinter Publishers, 1987), p.17.

[6] Ibid.

[7] Ibid.

[8] Ibid., p.18.

[9] The project entitled “The Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region”

[10] Article 3 of the Moroccan Project of Autonomy.

[11] Patrick Thornberry, “The Democratic or Internal Aspect of Self-determination with Some Remarks on Federalism”, in Christian Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1993), p. 101.