The presidential proclamation will undoubtedly have a significant political and legal impact.
In an article I published in September, I argued that Morocco was not ready to establish full diplomatic ties with Israel. Recent developments proved me wrong.
Leaving my personal views aside, and as far as the Western Sahara conflict is concerned, I believe the United States’ recognition of Morocco’s sovereignty, if it holds, will have a significant impact on the UN political process and Morocco’s position.
Whether Trump’s decision will stand after Biden’s inauguration is impossible to definitively predict. But if President-elect Joe Biden maintains the new policy, it will have significant implications. It may even push other countries to recognize Morocco’s sovereignty over Western Sahara, deepening Algeria and Polisario’s diplomatic isolation.
The weight of a presidential proclamation
Some may say the move will have no legal or political significance, as it came in the form of a presidential proclamation as opposed to an executive order.
The proclamation, although it may not formally match the legality of Congressional bills or executive orders, does, however, still carry legal implications.
According to the House Government Operations Committee, “executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law.”
In addition, when these proclamations or executive orders are published and used in line with the president’s powers, they have the force of law.
Presidential proclamations and foreign policy: Precedents
In accordance with the division of powers between the executive and legislative branches of government, Congress can reverse presidential proclamations adopted outside the powers of the president.
Congress has reversed presidential proclamations and executive decisions in many instances. However, these cases were related to domestic policy. When determining the legality of a presidential proclamation or executive order regarding the management of foreign policy, it is customary for the courts to treat the president with deference.
A helpful case for reference is that of the US normalization of ties with China. In 1971, then-President Richard Nixon surprised American politicians and the public by expressing his intention to restore relations.
Despite the importance of the move, its impact on the country’s future, and its discord with American foreign policy at the time, Nixon made the decision in line with the constitutional authority to conduct his country’s foreign policy. He did so without consulting Congress, which subsequently did not attempt to review or repeal the decision.
In cases where there is ambiguity about presidential and Congressional powers, and where the president signs a proclamation — or simply makes a decision, as in Nixon’s case — that faces no pushback from Congress, the latter’s silence means that it has acquiesced to the president’s authority to make such a move.
When President Nixon made that decision and Congress did not oppose it, he changed the direction of US foreign policy with China.
Legal interpretation of the president’s proclamation
The recognition of foreign governments and opening of diplomatic missions are within the presidential powers as defined by the United States Constitution.
President Trump’s announcement included his decision to open a US consulate in Dakhla. Once the US opens its consulate, this will mean the United States’ formal recognition of Morocco’s sovereignty. It will have legal implications in accordance with the privileges and obligations the Vienna Convention on Diplomatic Relations guarantees.
Even if one assumes the proclamation has no legal effect on US policy, it can be argued by the principle of “legal interpretation” that the president’s decision to open a consulate gives the proclamation the force of law; the president can only make such a determination if he is invested with the authority to do so. It is the interpretation of the proclamation’s language that gives it legal power.
Nevertheless, this does not mean that Biden will be bound to open a consulate in Dakhla. In 1995, Congress passed a bill — with the support of then-Senator Biden — calling on the White House to transfer the US Embassy from Tel Aviv to Jerusalem. However, the bill was not implemented until Trump came to power.
Unprecedented political momentum for Morocco’s position
Regardless of whether or not the proclamation has legal implications, it carries great significance and represents a welcome boost to Morocco’s position. From a political and diplomatic standpoint, the decision will represent the United States’ official position towards Morocco and the Western Sahara dispute and form the diplomatic framework that will govern that position.
Some predict the polarization and tribalism of US politics and the timing of the decision — less than six weeks before the end of President Trump’s term — will push his successor to repeal it and restore the United States’ long-standing neutrality.
It is true that Biden has announced he will reverse many of President Trump’s decisions, notably the decisions to withdraw from the Paris Climate Change Agreement and the World Health Organization (WHO), as well as the Iran nuclear deal.
The Western Sahara dispute’s distinct character in US policy
But there is an important difference between the Sahara dispute and the other three issues. The latter constitute contentious issues at the core of bipolarization between Democrats and Republicans, especially since Trump won the presidency. For example, there is a fundamental bipartisan disagreement over how to handle Iran’s nuclear deal.
Conversely, the issue of Western Sahara and US relations is not a contentious point between the two parties, nor is it a conflict of high intensity that will top the president’s agenda. In addition, Morocco has over the years succeeded in gaining bipartisan support for its position on Western Sahara. In recent years, for example, Congress has included Western Sahara in Washington’s annual assistance package to Rabat.
In addition to the support Morocco enjoys from both parties within Congress, what makes it unlikely that Biden will repeal Trump’s decision is his precise knowledge of Morocco’s position and its expectations regarding the US. He is also aware that Morocco submitted the autonomy proposal to the Security Council at the suggestion of former President Bill Clinton.
Trump’s recognition of Western Sahara as part of Morocco is an explicit translation of the US position on the issue. Biden is aware of the quality of relations between the two countries and is unlikely to jeopardize them.
The weight of Morocco-Israel diplomatic ties
In addition, President Biden’s track record – from his election as senator in 1973 to his presidency of the Senate Foreign Relations Committee and his tenure as vice president during President Obama’s term – suggests he will have no personal or political incentive to overturn Trump’s decision.
Though Biden supports a two-state solution, he is one of Israel’s fiercest advocates in Washington.
President Biden favorably received the news of Arab countries’ decisions to normalize diplomatic ties with Israel. Biden was quick to congratulate the UAE on its move, describing the deal as “historic.”
Importantly, Morocco’s decision to reestablish partial ties with Israel will position the country more strongly in Washington. If Morocco has, for many years, benefited from the support of the Jewish lobby to sway the US position on Western Sahara, its rapprochement with Israel is likely to strengthen the pro-Moroccan Jewish lobby.
The lobby’s influence on members of Congress from both parties is among the most important characteristics of American political life.
By persuading Morocco to resume ties with Israel, President Trump has given a gift to President Biden insofar as many experts in Washington believe Biden will also encourage more Arab countries to follow suit.
Even if Biden and Trump’s personalities and styles are polar opposites, the essence of any US president’s policy is to stand by Israel, support it in international fora, and ensure its regional military edge.
The Sahara decision and the US’ diplomatic credibility
Biden will work to restore US partners and allies’ confidence in the United States’ will to honor its commitments and agreements, especially as Trump damaged the international reputation of the United States by withdrawing from several bilateral and multilateral agreements.
If Biden were to decide to overturn President Trump’s decision on Western Sahara, the move would weaken the United States’ credibility, which contradicts Biden’s plans to restore his country’s international prestige.
All of these factors combined could prompt a potentially reluctant Biden to maintain Trump’s policy toward Morocco on Western Sahara. These factors will push him to build on it to reach a political solution consistent with the realism and consensus Security Council resolutions advocate.
This is not to say that the possibility of Biden overturning Trump’s decision is out of the question. The Biden administration may go against expectations and reconsider the decision. However, doing so could have an unprecedented negative impact on relations between Morocco and the United States, which is in neither country’s interest. Such a move could also meet strong opposition from members of Congress.
Need for comprehensive diplomatic, academic, and media mobilization
Still, Moroccans should not over-celebrate, lean back, and think that the Western Sahara file is on the right track towards a final solution. US recognition of Morocco’s sovereignty over Western Sahara will not lead to a final solution to the conflict in the near future. This is especially true because Algeria receives backing from Russia, which has, for the last four years, abstained from supporting US-drafted UN Security Council resolutions.
In light of the political rivalry between Washington and Moscow, Russia will spare no effort to prevent the Security Council from adopting any resolution that would favor the United States’ stance and position on Morocco’s autonomy proposal as the basis for a political solution. Algeria will also redouble its diplomatic and media efforts to persuade President Biden and his advisers to reconsider the decision to recognize Western Sahara as Moroccan.
Morocco has won a very important diplomatic battle, but its diplomatic, political, and media war with Algeria will not only endure but intensify. Morocco and its people now face the test of confronting a biased media machine that does not do justice to the country’s historical and legal rights.
This media machine, for example, still considers the International Court of Justice’s 1975 advisory ruling to be the main reference for resolving the dispute. It overlooks the ruling’s loopholes and contradictions, the dissenting opinions of some of the judges who issued the ruling, as well as the political and diplomatic developments of the last two decades.
A well-orchestrated media campaign has been building up against Morocco in the past week, led by former US officials, such James Baker, John Bolton, as well as Christopher Ross. They all happen to have in common a bias against Morocco and an affinity for Algeria. If Morocco does not move quickly to counter their narrative, it could cost it very dearly, with the result being Biden’s decision to reverse Trump’s move. Though this is a farfetched scenario, it not beyond the realms of possibility.
There should be a comprehensive and continuos mobilization of governmental, non-governmental, academic, and journalistic actors to convey Morocco’s voice to the world and to inform it of the full story and ramifications of the conflict.