The Sahara matter is based on one of the contentious territories that are the most complex and oldest in the African continent. This matter arouses a number of questions and problematics linked more to strategic issues that drive the involved parties in this matter, than the status of the territory in relation to International Law. Having spilled too much ink, the legal status of Western Sahara has been analyzed profusely by the internationalist doctrine. It is noteworthy to remind that Morocco was the first to have requested the Organization of the United Nations (UN) to include the Western Sahara issue in its Fourth Committee, in charge of dealing with decolonization issues. However, Spain, as a colonizing power then, had used up all sorts of ploys to slow down, as much as possible, the process of the decolonization of this territory. For this aim, it has been suggested to the populations living in Sahara the idea of creating a new Sahrawi State, via the holding of a self -determination referendum. For Morocco,this territory, which had been arbitrarily dissociated from the issue of Sidi Ifni and Tarfaya,had to be brought to it alongside the territories mentioned above. After more than three decades, the legal status of the Western Sahara territory has still been the subject of live controversies and doctrinal debates. In this article, we put emphasis on the legal status of Western Sahara in relation to International Law. To achieve that, historical overviews of various acts of legal value which have punctuated this conflict allow us to determine the angles in relation to International Law.
Indeed, since the end of the French protectorate, Morocco had never stopped claiming back the lands that had been arbitrarily cut. By way of reward, the joint Franco-Moroccan Declaration of 2 March 1956, includes as well, the recognition of the independence, the territorial integrity of the Kingdom. Moreover, the joint Hispano-Moroccan declaration of 7 April in the same year, reaffirms without ambiguity "(...)the territorial unity of the Empire(...) ". On 25 February 1958, the sultan Mohammed V delivered in Draa valley, on the borders of Western Sahara, a speech highlighting the fidelity of Sahrawi tribes and their attachment to the reigning monarchy. In this speech, Mohammed V reaffirmed his will"(...)to keep his action to restore Western Sahara".To accelerate the decolonization process of western Sahara, Morocco submitted, since 1963, the Western Sahara issue to the UN Committee for Non-Self-Governing Territories On 16 December 1965, the UN General Assembly, via its resolution 2072(XX),asked"(...) insistently the Spanish government (...) to take immediately necessary measures for the liberation from colonial domination of of the territories Ifni and Western Sahara and to conduct for this purpose negotiations on the problems related to the sovereignty over these two territories."
On 1st April 1958, Morocco managed to get Tarfaya thanks to the signature of Cinta Agreement and later Sidi Ifni by the Fez Treaty on 4 January 1969. However, Morocco kept supporting that its territorial integrity would not be achieved only after the restoration of all the territories that have been taken. Amid Spanish dithering, Morocco, supported by Mauritania, requested the UN General Assembly to seize the International Court of Justice(ICJ), for an advisory opinion related to the legal links existing between Morocco and Western Sahara on the one hand, and the latter and the Mauritanian whole on the other hand. In ruling on the merits, the ICJ concluded, in its advisory opinion rendered on 16 October 1975, of the existence of allegiance ties between some tribes of Western Sahara and Moroccan sultan. Morocco considered, via this opinion, that the ICJ recognized the Moroccanity of Sahara since the Court had found the existence of allegiance ties between Morocco and Sahrawi tribes. On 16 November 1975, Morocco organized a Green March through which it managed to restore the territory of Western Sahara.
Many arguments consolidate the Moroccanity of Sahara. Among these arguments is the effectiveness of Moroccan jurisdiction on this territory. This effectiveness falls within the long history of the Sheriffian Empire. In addition to the allegiance acts of Sahrawi tribes to Moroccan sultans,we can mention other historical acts through which Morocco has exercised its authority on the territory of Western Sahara. For example, they include the dahirs of the nomination of caids, who exercised executive authority in Western Sahara, on behalf of the sultan. We can also add the collection of Koranic taxes and military acts of resistance against foreign penetration of the territory.Furthermore,the management of public services in Western Sahara is ensured by Morocco, the Moroccan legislation is applied there as the case in all other regions of the Kingdom, and the judgments are rendered in the name of the King.
At the UN level, Western Sahara has all the time been included in the list of non-self-governing territories whose population has the right for self-determination. Needless to say, self-determination is not a synonym of independence, as sought by the separatist Front of Polizario and its Algerian mentor. If this legal and political principle has played an important role in the decolonization process of a number of colonized territories, especially in the 1960s, the fact remains that it was tendentiously interpreted to the extent where it has been reduced to the only notion of independence. The resolution 1541, adopted by the General Assembly, on 15 December 1960 entitled, " Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73 e of the Charter", It, therefore, has held three options: 1) independence and sovereignty; 2)free association to an independent State and 3) integration within an independent State. Within the same order of ideas, the resolution 2625, adopted by the Assembly General on 24 October 1970, entitled,"Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations", confirming the three options already mentioned, namely" the acquisition of any other political
status freely determined by a people”.
It is in this sense to remind that the Moroccan initiative for the negotiation of an autonomy status of Sahara consists another form of self-determination. This initiative conforms to international legality to the extent where it foresees a wide autonomy, allowing the Sahrawi population to manage their affairs by themselves through locally-elected political bodies, under Moroccan sovereignty. This proposal anticipates the holding of a referendum for its approval permitting also the Sahrawis to exercise, within the framework of a wide autonomy, their right of self-determination. Thus, this suggested solution by the Moroccan authorities is the only one enabling the political and peaceful settlement of a conflict that has lasted too long.
In general, the international legality of the Moroccanity of Sahara so-called Western combined with the effective power exercised by the Moroccan State on the territory in question, only weakens the formed tandem stance of Plozario and Algeria, from both legal and geostrategic vantage points.
Translated by Abdelmajid Madani