Deconstructing the Political and Legal Discourses on Western Sahara

 The independence discourse on Western Sahara remains one of the most problematic rhetorical undertakings in post-colonial times.

Full of epistemological and political cul-de-sacs, this discourse embodies the tensions at the heart of the nationalist agendas of proto-liberation tendencies.

The lack of political coherence in the discourse of independence proponents comes from the romantic celebration of an unrealistic nationalism, one that is not grounded in history or in a reinvented cultural politics.

Supporters of this approach need to subvert these unsettling assumptions, not for intellectual reasons, but because they are the basis of actions on the ground, actions that have been so far unsuccessful and incoherent.

A solution to the ongoing conflict can only be possible if both sides advance well-thought-out historical narratives that will provide the basis for a mutually agreed upon plan, which is not yet the case.

In the meantime, fantasies continue to be built around competing nationalisms, one grounded somehow (albeit awkwardly) in history, and the other in an imagined destiny that is at odds with both historical facts and cultural practices.

The result is a political cul-de-sac that mirrors the rhetorical contradictions of the discourse that informs political actions and advocacy efforts. And of course, the prolongation of a pseudo-conflict that never should have existed in the first place, with the sufferings that go with it on the ground, especially in the refugee camps.

Deconstructing political and legal discourses

Most of the writings and informed political or legal decisions on the history and politics of Western Sahara are built on assumptions that are either historically shaky or theoretically unfounded.

The romanticism of post-colonial positions has blinded militants and some scholars to the fact that the historical and sociological reality is at odds with meta-concepts imposed from other historical realities and metanarratives, especially Western discourse on liberation, statehood, and the nation state.

ICJ Ruling

The watershed decision that triggered the series of events that marked the territory’s history over the last 40 years was the International Court of Justice’s (ICJ) October 16, 1975 advisory opinion regarding two questions (1):

1. Was the territory terra nullius when Spain colonized it in 1888? 2. Were there any historical ties between the Sahrawi populations and Morocco? The terra nullius argument was the basis of Spain’s response to Morocco’s nationalist claims—in an attempt by Spain to keep the territory under its control. On the other hand, Morocco’s claims to the territory were historical, based on its human, commercial, cultural and religious interaction with the territory since the 10th century. They were also legal, based on the allegiance Sahrawis paid to Moroccan Kings since the Middle Ages.

The opinion of the ICJ was forcedly balanced, unduly interpretive and pseudo-political (rather than purely judiciary). To the first question, the court decided that Western Sahara was not terra nullius when the Spanish colonized it at the end of the 19th century. None of the parties questioned the meaning of terra nullius. Everybody (Spain, Morocco, Mauritania, the UN and the ICJ) understood the concept to mean uninhabited territory. But the notion of terra nullius applies only when there is a link between the people and the territory. Will it apply to nomadic, semi-nomadic and transhumant tribes roaming northern Mauritania, southwestern Algeria and southeastern Morocco looking for grazing opportunities for their camel and goat herds?

Terra Nullius

The existence or non-existence of terra nullius depends on a sociological paradigm that was absent in Western Sahara up until the mid-20th century with the sedentarisation of the nomadic tribes of the Sahara (2).

The ICJ ruling was right in saying that the territory was no terra nullius (a few settlements and roaming nomads prior to colonization speak to that). However, it is possible that the constant nomadism of Saharan tribes had made the territory a temporary terra nullius at times of drought or when the herding tribes would move east to present-day Algeria, deep south to modern-day Mauritania or flee the Siba wars (3) to Benguerir, Sidi Kacem, Guelmim or Taroudant (in Morocco) (4).


Had the court ruling been more nuanced in saying that the “territory was no terra nullius, but the few settlements and the pastoralist and nomadic ways of life in no way denoted a property right of the people to the land. That property should be looked for in who ruled over the territory by virtue of international conventions and the allegiance of the local powers (judges, caids and notables) to those very rulers”, much political and legal wrangling would have been avoided.

Quite a few activists and scholars took the terra nullius argument (which was a winning card for the Moroccan government against Franco’s position) to mean “whoevepr lives in the territory owns it” and decides on its fate (5).

But as we have seen, the nomadic Saharan tribes did not live in the territory in a sedentary fashion in such a way as to own it. Moreover, owning a piece of land or pasture individually or collectively does not amount to sovereignty over the territory; sovereignty over a territory is a supra-tribal concept that supersedes the concerns of pasture, water, and nomadic communal life (6).

Thirdly, sovereignty over a land is not always based on property rights; if that were true, then Russia would have been right in claiming Crimea back (given that the majority of its inhabitants speak Russian or are of Russian origin). And France would have had no right to sell Louisiana to the US in the mid-19th century because of its dominant French culture and demography. Culture and demography could inform legal decisions regarding sovereignty (national property) but it is not a standard rule, especially in some non-Western contexts.

Allegiance, but…

The ICJ’s answer to the second question was that there were legal allegiance ties between Morocco and the Saharan tribes; however, those ties should not constitute a basis for the ownership of or sovereignty over the territory. And to add: these legal ties also did not mean “self-determination” which can only be achieved “through the free and genuine expression of the will of the peoples of the Territory.” (7) This part of the ruling, out of concern for balance, came out full of contradictions. How can the legal ties between the people of a territory and an entity not constitute a basis for property or sovereignty? Why is allegiance not the basis of sovereignty?

If the judges and legal scholars after them consider allegiance to be at odds with modern day constitutionalism and democratic institutions, then they should have thought twice. The pledge of allegiance to the flag and the undivided nation is the basis of American federalism: “I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.” (8) The controversy around the oath of allegiance is more about its use for patriotic reasons than for its conceptual content.  The British oath of allegiance, since the Magna Carta in 1215 up until the modern wording under Queen Victoria and currently under Elizabeth II, involves “faith” and “true allegiance” to the monarch and “her heirs and successors, according to law.” (9) The current debate about nationality in French politics is at depth a debate on allegiance to the values of the republic, which means that belonging to the nation implies an act of allegiance. (10)

Populations and territory

The ICJ not only discarded allegiance as the basis for sovereignty but assumed that a legal relation with the populations implied a legal relation with the territory.

How is that possible with nomadic tribes with only a few settlements at water points or sacred sites? Why did the court discard the various accords Morocco had signed with the English, the French, the Russians, the Portuguese, the Dutch, etc. to allow for safe navigation along the Western Sahara shores (11)? The Spanish even advanced as one of their conditions for the ceasefire after the Tetouan War against Morocco in 1859-60 the “permission” to build a settlement along the coast of Western Sahara (12). Why did the ICJ not decide that sovereignty over the territory could only be Moroccan, both de facto and de jure, by virtue of the accords signed between Morocco and European nations regarding Western Sahara (13)?

In addition, the territory as such is a creation of French and Spanish colonialism. If we want to be ecologically and culturally “pure”, the space where Saharan tribes with similar sociological and cultural traits exist in a nomadic and transhumant form extends from the Erg Chebbi dunes and the Noun and Draa Rivers up north (Morocco), to Adrar and Reggane (Algeria), to Kiffa and Néma (Mauritania). That is more or less where people meet the territory. As such the Western sense of territorial nationalism, on which the ICJ condition was built, does not apply.

In fact, by adding the interpretation that allegiance is not a basis for sovereignty, the ICJ answered a question it was not asked. It is a question that should not be asked in the first place: it is up to the parties to discuss what it means to have allegiance ties between the local populations and the Moroccan polity.

The ICJ’s interpretive addendum not only created a contradiction. It also decided for the parties what they should do with its ruling and undermined the position of those who want to use allegiance as a basis for Moroccan sovereignty! In its attempt to craft balance, the ICJ created a significant contradiction with dire military and political consequences for the conflict.

Saharan Kings

Moreover, allegiance in the Morocco-Saharan context is, historically, not a straightforward notion; it is not a one-way street. Allegiance was not from southern tribes to northern Kings; those very Kings since the Almoravids came, for the most part, from the very Sahara that is supposed to pay allegiance to allegedly “foreign” Kings (14).

The Almoravids were born of the Saharan nomadic tribes in the Mauritanian Adrar. They roamed the Saharan West between Morocco and Senegal around the 1040s under the spiritual leadership of the Malekite Abduallah Ibn Yassine before conquering Awdaghost, Awlil and Sijilmasa and setting capital in Aghmat in the High Atlas (15).

Here is a Saharan dynasty, of nomadic Lemtouni origins, to which both Saharan and non-Saharan tribes paid allegiance, and which unified northern parts of Mauritania, southwestern parts of Algeria, and all of Morocco and Andalusia under one flag in the 11th and 12th centuries (16): is its allegiance system at odds with the ICJ assumption that allegiance is only a one-way street between Saharan tribes and non-Saharan Kings? The Saadian and Alawite dynasties originated in the Sahara as well as the other Berber dynasties that ruled Morocco between the 10th and 17th centuries, which almost all moved from the South to the North (17).

Morocco has always been Saharan in the same way as parts of the Sahara were Moroccan, especially under the Almoravid, the Wattasid, the Saadi and the Alawites (up until the colonial period).

Ibn Khaldun’s theory of the rise and falls of empires (18) was based on the historical movement from an ascetic Saharan environment to more “decadent” urban centers in Fez, Marrakech, Tlemcen and Taroudant.

Power comes from the austere, frugal and strict South and decays up North when it meets with the “hedonistic” values of urban life. Allegiance of urban centers to southern warriors writ victorious through solidarity and alliance networks is well-documented in history books (19).

Therefore, I always toy with the idea of rewriting the ICJ ruling. I imagine it as follows: “There were allegiance ties between Saharan populations and Moroccan Kings. However, some of these Kings were themselves Saharan and therefore allegiance was also from non-Saharan groups to Saharan Kings who ruled over all of Morocco.

The interconnectedness between things Saharan and the Moroccan polity was so strong and complex that it is difficult to speak of Morocco without the Sahara or of the Sahara without Morocco.

Whether this is the basis for Moroccan sovereignty over Western Sahara is something to be negotiated among the stakeholders under the supervision of the UN.” This nuanced ruling would have opened different possibilities for the parties to find common ground and a mutually agreed upon solution.

Polisario, Moroccan at first…

This is so much so that the foundation of the Polisario Front in Rabat in the early seventies was aimed at liberating Western Sahara from Spain and integrating it into Morocco (20). Independence became an option when the Moroccan authorities and political parties failed to listen to the young Polisario leadership and even suppressed a peaceful demonstration in Tan Tan in 1972, which was organized to ask for the reintegration of a decolonized Western Sahara into Morocco (21).

Gaddafi adopted the group in 1973 and convinced it to turn into a revolutionary movement and fight for independence, as a way of creating nuisances for (and ultimately toppling) the then allegedly “reactionary” regime of Hassan II.

What is important here is that Polisario’s founders were aware at the beginning that Western Sahara could be at odds with history, culture and ecology if it were to renege on its historical role as a source of renewal in Moroccan dynastic politics. Unfortunately, that glimmer of hope was lost due to Moroccan government short-sightedness and the emergent adventurism and primitive nationalism of Gaddafi-sponsored Polisario.

“Peopleness” and nationhood

What could have been avoided was the painstaking effort to foreground a Saharan people and national identity despite the stubbornness of historical truth.

How can you bestow the notion of “people” on nomadic tribes that roamed spaces without any consideration for colonial and post-colonial borders? What is the basis of “peopleness“? Even the notion of a “nation” would be an aberration in the absence of founding myths, unifying folklore that praises the deeds of heroes and foundational moments! The nation is a construction (22).

Saharan tribes were not interested in this exercise because they belonged to a loose entity called the Saharifian kingdom to which they paid allegiance, sometimes taxes, and sometimes aspired to conquer when they became strong, in which they took refuge fleeing Siba wars or had their learned sons serve as judges or local lords for its different dynasties, in whose cities they traded camels.

The closest they came to a national aspiration was as subjects of the sultan, who may have happened to come from amongst them, as was the case with the Almoravids.

It is therefore safe to say that the sociological nature of Saharan tribal structure makes the territory only accessory to the pastoral needs of the population.

The territory changes from Draa, to Noun, to Adrar, and other vast Saharan spaces depending on the availability of grazing pastures, water and safety of passage. Western Sahara was a colonial construct, reinforced by proto-nationalist desires, fueled by Cold War designs and geostrategic considerations. As such, it reflects neither the cultural ecology of the Saharans nor their complex history as one of the groups that indelibly marked the demographic, cultural and political fabric of Greater Morocco.

The referendum

The highly controversial referendum is a conceptual and a political oddity. The will of the population is not transferable to the status of the territory. The population may choose to stay under Moroccan sovereignty or choose another form of governance.

However, the territory itself has another legal status which depends on who ruled over it before Spanish colonialism (by virtue of the accords signed with maritime powers in the 18th and 19th centuries) (23), and who initiated the process of decolonization starting with Tarfaya in 1958, the resistance to the French-Spanish Ecouvillon Operation against the Liberation Army in 1958, the registration of the Moroccan demand with the UN Fourth Commission in 1964 (24), the retrocession of Sidi Ifni in 1969, the Green March in 1975 and the Madrid Accords in 1976.

Post-colonial politics

These acts of post-coloniality are ignored by some scholars, independence and human rights militants because they are adamant on setting up another post-coloniality narrative based on an imaginary construct of an “oppressed people and a colonized nation.”

In the absence of sociological evidence to warrant “peopleness” and historical evidence to warrant “nationhood”, the promoters of this post-post-coloniality never explained how they would reconcile the sociology of nomadism and its malleable ecological spaces with the historical jurisdiction over the Western Sahara (and parts of the Eastern Sahara) territory.

The result has been a nationalist rhetoric, sometimes advancing the post-colonial argument, sometimes the human rights agenda and, a third time, the natural wealth of the territory. This rhetoric sometimes mixes them all, without any attempt to build a historico-sociological narrative that withstands critique, especially from the standpoint of post-colonial, cultural studies and deconstruction theories.

Human rights

The argument against human right abuses in Western Sahara tries desperately to link HR cases to the suppression of national aspirations; the HR proponents state that Saharans are oppressed because they are struggling for self-determination.

However, when you look at most of the documented cases you will find that they are not different from what happens in Oujda, Tangier, Zagora or Fez. It is a problem of governance and human rights culture at the level of the security apparatus that does not have anything to do with ethnicity or political views. The desperate link between human rights and independence views shows the limits of post-post-colonial discourse.

Equally desperate is the link between Moroccan control of the territory and the exploitation of natural resources. This link does not stand the Moroccan rebuttal that it has been spending tens times more on the territory’s development than it has received from the exploitation of its resources (25).


These epistemological and political cul-de-sacs are at the heart of the contradictions and the imagined assumptions of Western Sahara legal and political discourse.

The lack of political coherence in the discourse of independence proponents comes from the romantic celebration of an unrealistic nationalism, one that is not grounded in history or in a reinvented cultural politics. Supporters of this approach need to subvert these unsettling assumptions, not for intellectual reasons, but because they are the basis of actions on the ground, actions that have been so far unsuccessful and incoherent.

A solution to the ongoing conflict can only be possible if both sides advance well-thought-out historical narratives that will provide the basis for a mutually agreed upon plan.

Lahcen Haddad

By Lahcen Haddad
Lahcen Haddad is a Strategic Studies Expert

Footnotes

1. International Court of Justice , Western Sahara: Advisory Opinion of October 16th, 1975, 12.

2. Olivier Vergniot, « De la distance en histoire. Maroc – Sahara occidental : les captifs du hasard (XVIIe-XXe siècles) » Revue des mondes musulmans et de la Méditerranée Année (1988 48-49 : pp. 96-125).

3. Bled-Siba : Land of dissidence or the area of the Kingdom of Morocco whose tribes or inhabitants refused to pay taxes or accept government-appointed caids. Nonetheless, these tribes rarely rejected the authority of the Sultan.

4. Grigori Lazarev, « Les mouvances de population dans les provinces sahariennes. De l’histoire à aujourd’hui”, Critique économique (33, 2015): 25-37.

5. Abdeslam Maghraoui, “Ambiguities of Sovereignty: Morocco, the Hague and the Western Sahara Dispute”, Mediterranean Politics, (08 Dec: 2010): 113-126 & Samuel J. Spector, “Western Sahara and the Self-Determination Debate”, Middle East Quarterly, (2009: Vol. 16, number: 3).

6. James A. Caporaso, “Changes in the Westphalian Order: Territory, Public Authority, and Sovereignty,” International Studies Review Vol. 2, No. 2, Co Order (Summer, 2000), pp. 1-28.

7. ICJ Reports (1975) p. 68, para. 162

8. US Department of Veterans Affairs, Washington, D.C. 20420

9. UK Oath of Allegiance and Pledge of Loyalty, https://assets.publishing.service.gov.uk/government/uploads/system/uploa...

10. Liav Orgad, “Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy” Canadian Journal of Law & Jurisprudence (2014: Vol 27, Issue 1): 99-122.

11. Charles-André Julien, Le Maroc face aux impérialismes, 1415-1956. In: Annales. Économies, Sociétés, Civilisations. 35ᵉ année, N. 3-4, 1980. pp. 822-823.

12. José Carlos Lopez-Pozas Lanuza, « Africà Occidental Espanola : la Cuestion de la Sobrenià y la Retirada del Sahara » Tesis Doctoral, Instituto Universitario General Gutierez Mellado, 2015.

13. Abdelkhaleq Berramdane, Le Maroc et l’occident (Revue française de sciences politiques, 1988)

14. H. T. Norris, Saharan Myth and Saga (Calrendon Press, 1972).

15. Frank Trout, Morocco’s Saharan Frontiers (Geneva: Droz, 169).

16. Vincent Lagardère,  Les Almoravides jusqu’au règne de Yusuf b. Tasfin (1039-1106), (Peyronnet Georges : 1993)

17. Abdarrahmane Ibn Khaldun, L’histoire des berbères et des dynasties musulmanes de l’afrique septentrionale, traduit de l’arabe par  le Baron de Slane (Alger : 1854)

18. Muhsin Mahdi, Ibn Khaldun’s philosophy of history A study in the philosophic foundation of the science of culture (George Allen & Unwin, 1957) & Elisabeth Mérad-Bouchouareb, « Ibn-Khaldoun : Origine et décadence des Etats » Revue historique de droit français et étranger, Vol. 71, No. 4 (octobre-décembre 1993), pp. 585-594.

19. Stephen Cory, “Breaking the Khaldunian Cycle? The Rise of Sharifianism as the Basis for Political Legitimacy in Early Modern Morocco”,  Cleveland State University History Department Publications, 2008; Anderson E.N., Chase-Dunn C. “The Rise and Fall of Great Powers” in Chase-Dunn C., Anderson E.N. (eds) The Historical Evolution of World-Systems. The Evolutionary Processes in World Politics Series, (Palgrave Macmillan: 2005).

20. The POLISARIO Front, a liberation group founded in Morocco, on May 10, 1973 by Mustapha Sayed El Ouali, aimed to “opt for revolutionary violence and armed struggle as the means by which the Saharawi population can recover its total liberty and foil the maneuvers of Spanish colonialism.’’ (16) However, the movement completely changed its course of action, delivering an ambiguous statement in favor of full independence of Western Sahara during its Second Congress in August 1974. The Congress also proclaimed the creation of the Sahrawi Arab Democratic Republic (SADR) as a government-in-exile to be based in Algeria. The POLISARIO received support first from Libya and then has up until now enjoyed political, military and diplomatic backing from Algeria. See Mohammed El Yazghi, Assahra Hawiyatouna, book-interview with Youssef Al Jalili, (2018.)

21. Tony Hodges, Historical Dictionary of Western Sahara. (The Scarecrow Press, INC.: 1982) pp. 113-117.

22. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso, 1991) & Homi Bhabha, Nation and Narration (Routledge: 1990).

23. Erik Jensen, Western Sahara: Anatomy of a Stalemate (Boulder: Lynne Rienner Publishers, 2005).

24. In  1964, at the request of Morocco, the Western Sahara issue was included in the Agenda of the Special Committee of Decolonization of the United Nations. In 1965, the UN General Assembly adopted resolution 2072, urging Spain to take immediate action and negotiate with Morocco the retrocession of the occupied territories of Sidi Ifni and the Sahara.

25. Emmanuel de Casterlé, Rapport sur le développement humain dans les provinces du sud du Royaume : Acquis et perspectives (PNUD, 2008).

 

03/12/2020