Dr. Sidi Mohamed Omar (Polisario Representative to the UN)
The Moroccan state-owned news agency, MAP, published an article on 14 April 2020 entitled “Moroccan Embassy in South Africa Deconstructs Pretoria Allegations about Morocco’s Territorial Integrity”[1].The article claims that “The Moroccan embassy in South Africa… deconstru[ed] point by point the fanciful fabrications contained in a statement[2] issued on Monday by DIRCO [South African Department of International Relations and Cooperation] in response to an article published by the Moroccan News Agency (MAP)”.
Let us see now how the main claims (highlighted in bold) contained in the statement of the Moroccan embassy are deconstructed point by point.
Claim 1:
“On the legal level, the embassy recalled that nearly 70 Security Council resolutions and no less than 120 reports of the various UN Secretaries General on the issue do not include any reference to Moroccan Sahara as an “occupied territory” or Morocco as an “occupying force”, noting that DIRCO’s allegations on this point clearly represent a political and ideologicalopinion devoid of any legal basis”.
Comment 1:
Unpacking the claim above would entail a detailed examination of all the “nearly” and “no less than” UN resolutions and reports, referred to in the Moroccan statement, but space constraints do not permit it. However, it is an undisputable fact that Western Sahara has been on the agenda of the UN General Assembly (UNGA), and consequently on the agendas of both the UNGA Fourth Committee and the UNGA Special Committee on Decolonisation (C-24), since 1963 as a Non-Self-Governing Territory to which the Declaration on the Granting of Independence of Colonial Countries and Peoples (UNGA resolution 1514 (XV) of 14 December 1960) is applicable as expressly established in all UNGA resolutions on the matter. Based on this fact, let us now see some of the UN literature on the subject.
In response to the so-called “green march” by which Morocco began its expansionist offensive on Western Sahara, on 6 November 1975, the UN Security Council(UNSC) unanimously adopted resolution 380 (1975) in which the UNSC, in operative paragraphs, “1. Deplores the holding of the march;2. Calls upon Morocco immediately to withdraw from the Territory of Western Sahara all the participants in the march” (italics in the original). Why did the UNSC call on Morocco immediately to withdraw its march from the Territory of Western Sahara, and would the UNSC have acted in this way had it recognised Morocco’s claims over the Territory? The answer is simple. The UNSC called on Morocco to withdraw all the participants in the march from Western Sahara because the Moroccan marchers “have violated the boundary of Western Sahara and illegally entered foreign territory” as pointed out by the Spanish Representative during the UNSC session. The illegal act carried out by Morocco involved “the possibility of a military conflict threatening peace and security” as underscored by the then President of the UNSC(USSR). In response, the UNSC therefore had to exercise its powers with respect to maintaining international peace and security in line with the UN Charter that prohibits the threat or use of force against any state or in any other manner inconsistent with the purposes of the United Nations.
In operative paragraph 5 of its resolution 34/37 of 21 November 1979, the UNGA “deeply deplores the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco and the extension of that occupation to the territory recently evacuated by Mauritania”. In operative paragraph 6 of the same resolution, the UNGA further “urges Morocco to join in the peace process and to terminate its occupation of the Territory of Western Sahara” (emphasis added). In operative paragraph 3 of its resolution 35/19 of 11 November 1980, the UNGA “again declares that it is deeply concerned at the aggravation of the situation deriving from the continued occupation of Western Sahara by Morocco and from the extension of that occupation to the part of Western Sahara which was the subject of the peace agreement concluded on 10 August 1979 between Mauritania and the Frente Popular para la Liberación de Saquia el-Hamra y de Río de Oro”. In operative paragraph 9 of the same resolution, the UNGA further “reiterates the appeal contained in its resolution 34/37 whereby it urged Morocco to join in the peace process and to terminate the occupation of the Territory of Western Sahara” (emphasis added). The paragraphs, cited above, are self-explanatory and need no further comment.
In the context of the world of today, it is pertinent to point out that the recognised legal status of all States in the international system falls under one or more of the following conditions: (a) they are internationally recognised as sovereign over their own territories, (b) recognised by the UNGA as administering powers of Non-Self-Governing Territories, or (c) recognised by the UNSC and the UNGA as occupying powers of other Countries or Territories. The UN Trusteeship Council suspended its operation on 1 November 1994, after it had fulfilled its mission, and today there are no Trust Territories administered by other States under the Trusteeship System. There are other territorial arrangements and regimes, but they are irrelevant to the case at hand.
In the case of Morocco, in terms of condition (a), the UN and the international community do not recognise Morocco’s claims of sovereignty over Western Sahara, i.e., Morocco is not sovereign over Western Sahara; as for condition (b), the UNGA does not recognise Morocco as administering power of the Non-Self-Governing Territory of Western Sahara; and regarding condition (c), as shown above, the UNGA has described Morocco’s presence in Western Sahara as an act of occupation, and called on Morocco to terminate its occupation of the Territory. As the adage goes, if it looks like a duck, walks like a duck and quacks like a duck, then it is a duck. In view of the facts outlined above, Morocco cannot be anything but an occupying power in Western Sahara despite the efforts of the Moroccan regime and its apologists to convince the international community otherwise. Therefore, when South Africa and many countries, organisations and individuals around the world describe Western Sahara as “the last colony in Africa”, they are simply stating an established fact.
Claim 2:
“The International Court of Justice (ICJ), quoted in DIRCO’s approximations, had stressed in an advisory opinion issued on 16 October 1975, that the Moroccan Sahara region was not atthe time of the Spanish colonization in 1884 a “terra nullius”, and that ties of allegiance existed between the King of Morocco and the tribes of the region”.
Comment 2:
The Moroccan statement clearly misrepresents the advisory opinion of the International Court of Justice (ICJ) on Western Sahara of 16 October 1975 by resorting to selective reading and reductive interpretation of the ruling. The Moroccan regime and its apologists usually cite the ICJ advisory opinion as legally underpinning and supporting their case, so it is important to highlight the main conclusions of the ruling.
Indeed, the ICJ points out that “Thus, even taking account of the specific structure of the Sherifian State, the material so far examined does not establish any tie of territorial sovereignty between Western Sahara and that State… It does however provide indications that a legal tie of allegiance had existed at the relevant period between the Sultan and some, but only some, of the nomadic peoples of the territory” (paragraph 107; emphasis added). However, the ICJ underlines that “in the opinion of the Court those ties did not involve territorial sovereignty or co-sovereignty or territorial inclusion in a legal entity” (paragraph 158; emphasis added).
Let us now consider very briefly the highly contested concept of “allegiance” (bay’ahin Arabic) and its ramifications in the Islamic context from which it is derived in this case. Granted that “legal ties of allegiance” could exist in the past between an individual and a Muslim community, those ties were limited in time and space and had no territorial basis whatsoever. As the ICJ itself underlines “Common religious links have, of course, existed in many parts of the world without signifying a legal tie of sovereignty or subordination to a ruler” (paragraph 95). To illustrate this point, consider, for instance, the fact that “ties of allegiance” had existed between Muslim communities in North Africa and in a great part of the Iberian Peninsula and the Caliphs of the Umayyad Caliphate established in Damascus in present-day Syria in the mid-7th century CE. What if Syria today would claim all these lands and their peoples and then move to annex them by force based on those “ties of allegiance”? That would be entirely absurd, yet the Moroccan regime has dared to commit such an absurdity.
To conclude its legal reasoning on the question under consideration, the ICJ clearly establishes, in paragraph 162, that “the Court’s conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory” (emphases added).In sum, the ICJ ruling, which the Moroccan statement clearly misrepresents, was unequivocal in terms of (a) denying the existence of any ties of territorial sovereignty between Morocco and Mauritania and Western Sahara and (b) endorsing the decolonisation of the Territory based on the principle of self-determination exercised through the free and genuine expression of the will of its people. This principle remains the backbone of the UN ongoing efforts to resolve the conflict in Western Sahara.
Claim 3:
“The Moroccan embassy in Pretoria stressed, on the other hand, that the political evolution of the issue reinforces Morocco in the legitimacy of its national cause. The majority of countries in the world express their support for Morocco’s efforts to settle this regional dispute, particularly through the autonomy initiative under Moroccan sovereignty”.
Comment 3:
Neither the UNSC nor the UNGA has ever described the question of Western Sahara as a “regional dispute”. Claiming that “the majority of countries in the world express their support for Morocco’s efforts to settle this regional dispute, particularly through the autonomy initiative under Moroccan sovereignty” is simply the old trick of resorting to generalities instead of presenting verifiable facts. The UN comprises 193 Member States and their statements on the question of Western Sahara, at both the UNGA and its Fourth Committee, are there for everybody to read. In no way do these statements indicate a majority of opinion in favour of what the Moroccan statement claims.
Claim 4:
“As an elected member of the UN Security Council for Africa, South Africa is called upon to echo African positions…recalling that the exclusivity of the UN process is well established by the African Union in accordance with Decision 693 of the AU Summit held in July 2018 in Nouakchott”(emphasis added).
Comment 4:
The African Union (AU) decision (Assembly/AU /Dec.693(XXXI)), referred to in the Moroccan statement, “stresses[ed] the need for renewed efforts to overcome the current impasse in the negotiation process and to find a just, lasting and mutually acceptable political solution which will provide for the self-determination of the people of Western Sahara, in line with the relevant AU decisions and UN Security Council resolutions” (paragraph 4; emphasis added). The AU Assembly also decided “to establish an African mechanism… to extend effective support to the UN-led efforts” (paragraph 5(a)). Nowhere in decision 693 does the AU speak of “the exclusivity of the UN process” in relation to the question of Western Sahara because, as a regional organisation, the AU is responsible for the promotion of peace, security and stability on the Continent in accordance with the AU Constitutive Act and the UN Charter (Chapter VIII). In this regard, the AU Constitutive Act establishes as a fundamental principle of the Union “the peaceful resolution of conflicts among Member States of the Union through such appropriate means as may be decided upon by the Assembly” (Article 4 (e)). The AU also remains a full partner of the UN and guarantor of the implementation of the UN-OAU Settlement Plan of 1991, which was accepted by the two parties, the Frente POLISARIO and Morocco, and endorsed by the UNSC and UNGA.
Claim 5:
“In 2000, former UN Secretary-General Kofi Annan concluded that this option [the referendum exercise] was not feasible, while calling on the parties to work towards a political solution, the embassy said, adding that since then, the Security Council has called on the parties to reach a mutually acceptable political solution”.
Comment 5:
The claim that UN Secretary-General Kofi Annan “concluded that this option [the referendum exercise] was not feasible” is a misleading statement. It is well-documented in the reports of the UN Secretary-General (UNSG) that it was Morocco that reneged on its commitment to the UN-OAU Settlement Plan based on the self-determination referendum, which it had accepted, particularly when the UN released the provisional voter list for the referendum in early 2000. In his report on the situation concerning Western Sahara (S/2002/178), dated 19 February 2002, UNSG Kofi Annan pointed out clearly that “Morocco has expressed unwillingness to go forward with the settlement plan” (paragraph 48). Morocco’s sudden change of heart was clearly due to its realisation that in a free, democratic referendum based on the UN established voter list, the people of Western Sahara would clearly choose the independence option[3]. It is as simple as that. Indeed, the UNSC has called on the two parties to achieve a mutually acceptable political solution that would provide for the self-determination of the people of Western Sahara. However, since its adoption of resolution 690 (1991) whereby the UNSC established the United Nations Mission for the Referendum in Western Sahara, MINURSO, the UNSC has also recalled and reaffirmed all its previous resolutions on Western Sahara.
Claim 6:
“In all the [UNSC] resolutions adopted in this sense, the pre-eminence of the autonomy Initiative presented by Morocco is highlighted as a serious and credible plan, added the Embassy”(emphasis added).
Comment 6:
This statement is another gross misrepresentation of UNSC resolutions, which are also there for everybody to read. No UNSC resolution, since 2007, speaks of “a serious and credible plan”. Rather, UNSC resolutions, starting from resolution 1754 (2007) speak, in preambular paragraphs, of “taking note of the Moroccan proposal presented on 11 April 2007 to the Secretary-General and welcoming serious and credible Moroccan efforts to move the process forward towards resolution; also taking note of the Polisario Front proposal presented 10 April 2007 to the Secretary-General” (italics in the original). Moreover, the fact that Moroccan diplomats always omit in this regard is that Morocco’s influential allies within the UNSC tried their best to have resolution 1754 (2007) expressly commending the Moroccan proposal “as a serious and credible initiative to provide real autonomy for the Western Sahara”. This wording was totally rejected by the majority of UNSC members for obvious reasons, and therefore no “plan” or “initiative” has been given any pre-eminence or described as “serious and credible” by the UNSC.
[1]https://www.mapnews.ma/en/actualites/politics/moroccan-embassy-south-af… (accessed on 15 April 2020)
[2]http://www.dirco.gov.za/docs/2020/western-saha0413.pdf (accessed 15 April 2020)
[3]The UN-OAU elaborated Settlement Plan, which was accepted officially by both the Frente POLISARIO and Morocco on 30 August 1988, provided for “the holding of a referendum without military or administrative constraints to enable the people of Western Sahara, in the exercise of their right to self-determination, to choose between independence and integration with Morocco” (paragraph 1; S/21360 of 18 June 1990).