1.       Political consequences

The Trump administration’s decision to recognise Moroccan sovereignty over the occupied territories of Western Sahara represents a radical shift in its position vis-à-vis the conflict. Until now, just as Robert B. Zoellick would express it in 2004, the free trade agreement between the United States and Morocco was not applicable in Western Sahara because the U.S. did not recognise Moroccan sovereignty over the territory.

Despite the enormity of this abhorrent decision by a – thankfully – former U.S. President, as well as the uproar it provoked, its consequences are extremely limited.

It is natural that Israel and Morocco, two states that are openly and unmistakably responsible for military occupations on foreign soil, would band together to defend this particular stance on the issue. In fact, they have now been allies for more than six decades. Although the Alawite regime has attempted to hide it, Israeli participation in the construction of the wall that has divided Western Sahara in two since the ‘80s and the cooperation between the intelligence services of both countries is an open secret.

Morocco has attempted to bury this evidence out of sight from domestic and international public opinion because, officially at least, it has claimed to be the principal advocate for the rights of the Palestine nation. The initiation of diplomatic relations between the two states, Morocco and Israel, “in exchange” for the recognition of Moroccan sovereignty over the occupied territories unquestionably shows both the actual role played by the Alawite monarchy and the role it is prepared to play in the “defence” of Palestinian rights.

In reality, the purported image of Morocco as the principal advocate for Palestinian rights in the Arab world is the reason why the Sahrawi and Palestinian national liberation movements have not been able to understand one another or form a united front in the face of a what is essentially the same violation of international law. Legally speaking, the situation concerning Morocco in Western Sahara is the same as that concerning Israel in the occupied Palestinian territories.

Curiously, Israel has been complaining to the European Union over a number of years about the unequal treatment that the institution has given to the respective Israeli and Moroccan military occupations. Effectively, the fact is that the EU has been, albeit timidly, putting pressure on Israel to respect the rights of the Palestinian population. Israel has thus complained that in order to sell products made in the colonial settlements in Palestine on European soil, they must be labelled as “products manufactured in an Israeli settlement in the occupied Palestinian territories.” Meanwhile, products coming from occupied Sahara freely enter the EU. Israeli has a point: the European Union does not hold the violations of international law in Palestine and in Western Sahara to the same standard, despite them being of identical legal character.

Morocco’s decision comes with an undeniable consequence: from now on, it will no longer be considered a state that supports the Palestinian cause. Instead, it shall be depicted in its true colours as a state that supports the occupation, just like the U.S. Although the monolithic Moroccan press tries to prevent it, the current period has seen social networks serving as a reflection of the broad sectors of Moroccan society who reject this decision. The Moroccan government has made efforts to diminish the importance of this change in position with respect to the Palestine conflict, relying on the same tired expressions, devoid of all content, that are employed by the Spanish government to justify its support for the Moroccan occupation of Sahrawi territory: “This state (Morocco, Spain…) supports the efforts of the United Nations to reach a politically viable agreement…”

 2.     Legal consequences

Trump’s decision is not of any legal consequence for the simple reason that it violates the right to self-determination of the Sahrawi nation as asserted time and again by the principal bodies of the UN: the General Assembly, the Security Council and the International Court of Justice. It is a binding law, and therefore, in compliance with article 53 of the 1969 Vienna Convention on the Law of Treaties; violating it converts to null and void any agreement that presupposes its violation. In other words, these agreements do not have any legal effect. Of course, the fact that it is the United States claiming the legality of the annexation by force of the territories does carry a certain political weight, but the power of the U.S. does not extend to the point of giving legal validity to things which have none whatsoever.

Additionally, the passing of time is not a condition that international law accepts for the regularisation of a situation resulting from a serious violation of the UN Charter. Given the dramatic events that Palestinians experience on their own land, and after more than a century of occupation, the UN continues to defend their right to self-determination and the return of the refugees. A separate question is whether the veto of a permanent member of the Security Council prevents the resolution of the conflict according to international law. Nevertheless, the legal foundations are clear.

It is worth remembering the words of the Advocate General of the European Court of Justice in 2018 and their conclusions regarding the legality of the fishing agreements concluded by Morocco and the European Union to exploit the natural resources of the Sahrawi nation: “the negotiation and conclusion with the Kingdom of Morocco of an international agreement applicable to Western Sahara and to the waters adjacent thereto constitutes in itself de jure recognition of the integration”. For that reason, “Since the assertion of Moroccan sovereignty over Western Sahara is the result of a breach of the right of the people of that territory to self-determination… [t]he European Union has failed to fulfil its obligation not to recognise the illegal situation resulting from the breach of the right of the people of Western Sahara to self-determination by the Kingdom of Morocco and also not to render aid or assistance in maintaining that situation”[1]. With the necessary changes, this same argument is applicable to the U.S. recognition of Moroccan sovereignty over the occupied Sahrawi territories.

 3. Does Joe Biden dare to overturn the decision to recognise the annexation of Western Sahara by Morocco?

It will be very difficult for him to do so. To be president of the United States of America., it is vital to have the support of the extremely influential United States-Jewish lobby. Let us not forget that basically the only support given by Barack Obama to the Palestinian people arrived just two weeks before his term was due to finish. It was only then that he dared to do it. At that moment, a first in the history of the Palestine conflict, the U.S. abstained in the vote on a key resolution in the Security Council. Although the International Court of Justice had already emphatically asserted that the establishment of Israeli settlements on the occupied Palestinian territories constituted a serious violation of international law, the abstention of the Obama administration allowed the Security Council to validate the decision of the court in The Hague, thus resolving the question. Nevertheless, in the earlier years of his mandate, Obama was incapable of moving a finger in defence of the Palestinian people, contributing to the occupation through his silence.

It must be insisted upon that the installation of Moroccan settlers in the occupied Sahrawi territories constitutes a serious violation of the Fourth Geneva Convention of 1949. Article 49 states that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”. This describes a situation that is legally identical to the Israeli settlements on occupied Palestinian territory.

4. What is the situation in the region of Western Sahara that is not occupied by Morocco?

It should be noted that even the European Court of Justice recalled in its 2015 decision that Western Sahara is not limited to the region that is militarily occupied by Morocco. Trump’s decision could give the impression that the U.S. also recognises Morocco sovereignty over the territorial region that is free from military occupation and is instead under the control of its rightful owners, the Sahrawis. Should this be the case, the recognition would obviously not be of legal consequence, but neither would it be of political consequence. This is because Morocco does not exercise any type of control over the region. It is a matter that is extremely important to the Sahrawi Arab Democratic Republic, which has always been aware that controlling part of its territory validates its existence as a state. At present, it is unthinkable that Morocco would employ the use of force to occupy this region of Sahrawi territory as well. If it felt tempted, however, Algeria has already given sufficient signals that it would not allow this.

5. What is the situation with respect to the airspace and territorial waters of Western Sahara?

This is another extremely important question because Spain, as the administering power, is still in control of Sahrawi airspace from its control centre in the Canary Islands. Through the state-run ENAIRE, the Dirección Regional de Navgación Aérea Canaria (the Canary Islands Air Traffic Control Regional Management) manages air traffic control operations in the archipelago and in Western Sahara. Here, the U.S. decision further complicates the situation for Spain; as signalled by Jared Kushner, Trump’s son-in-law and advisor, one of the agreement’s objectives is to permit the use of Sahrawi airspace by Israeli airlines, thereby establishing direct flights between Morocco and occupied Sahara on the one hand, and Israel on the other. We will have to wait to see exactly how Spain will react to this situation, but in order for Morocco to gain control of the territory’s airspace, the International Civil Aviation Organization would have to recognise Moroccan sovereignty over the territory, something that it obviously cannot do, as this would open it up to international responsibility. Furthermore, Spain controls all of Western Saharan airspace, both that under Moroccan occupation in addition to that under the control of the POLISARIO Front.

Moreover, 45 years after its departure from the territory, and given the legal status of the non-self-governing territory of Western Sahara – pending decolonialisation – Spain has been unable to delineate its maritime borders with Morocco and Western Sahara. Nevertheless, this is something that it will not be able to do until the Sahrawi nation exercises its right to self-determination. Trump’s decision does not affect this state of affairs in the slightest, which prevents something as basic as the establishing of defined state borders. This question will have to be resolved at some point for all parties involved, as it enormously complicates Spanish activity abroad.

Conclusion: law versus politics

Although it is true that, in the political realm, the United States’ recognition of Moroccan sovereignty over Western Sahara represents an important development in the consolidation of the illegal annexation and occupation of the territory, in the legal realm, nothing changes. International law is unequivocally on the side of the Sahrawi nation. This is why, far from abandoning the legal activism it began in 2014, the POLISARIO Front should persevere with it, redoubling its efforts. It is evident that the main obstacle faced by Morocco in consolidating its annexation of the territory, and an insurmountable one at that, is the law.

The return of the war, provoked by countless Moroccan violations of the peace treaty, of which the first and most important was its withdrawal from the treaty itself and the rejection of a self-determination referendum, is the only option remaining for the Sahrawi nation. The United Nations created the right to self-determination so that nations subject to foreign control could bring about their decolonisation. To reach this goal, the UN established the right for the nations in question to resort to military force. In 1991, the Sahrawi people decided to swap weapons for ballot boxes, relying on the latter as the way to effectuate the decolonisation process. Once Morocco had burned the ballot boxes, and in the face of a passive international community and a complicit Spain, the only option remaining for the Sahrawis is to pick up the weapons once more. International law supports it.

Note
[1] http://curia.europa.eu/juris/document/document.jsf?docid=198362&doclang=EN (194 and 212)

(Traducido por Andy Barton -Tlaxcala-int.org)