Washington D.C- Communicating a complex issue requires factual analysis. But fact-based insight is what former US Representative Eliot Engel, Senator James Inhofe and Joseph Huddleston largely declined to offer Al Jazeera for a recent article about Western Sahara. These sources distorted a narrative by providing a number of quotes that are misleading at best.
The first egregious mischaracterization is Inhofe’s allegation that the UN said sustainable success of its conflict resolution process “rests on a referendum for the Indigenous Sahrawi people to decide on their fate: independence or autonomy within a wider federation.” This lie translates Inhofe’s unspoken goal to keep manipulating the public opinion with unfounded claims that do not reflect the reality of the conflict.
The UN has communicated consistently for 13 years, since adopting UNSC Resolution 1754, that the only way to achieve a solution is through negotiations leading to a mutually acceptable solution.
No UNSC resolution during this period has called on the parties to work towards holding a referendum. ‘Referendum’ is only mentioned when the resolution refers to MINURSO’s designation.
More still, no UNSG annual report over the past 13 years has called for a referendum. Inhofe seeks to conflate referendum with the principle of self-determination. Self-determination can also be achieved through association or autonomy, in addition to independence. The fact of the matter is that the UN has abandoned the referendum option since 2000.
In his report to the Security Council in February 2000, then UN Secretary General Kofi Anan admitted it was impossible to conduct one. He therefore urged his personal envoy, James Baker, “to explore ways and means to achieve an early, durable and agreed resolution.”
Alignment with international law
This leads to the second mischaracterization. The report mentions that some analysts believe Trump’s decision violates international law. These analysts overlook that the principle of self-determination is the product of customary international law, which derives from the consistency of practice of individual states and of international organizations regarding any conflict.
This principle also draws from the consensus that existed in the 1970’s until the 1990’s about the need to allow Sahrawis to exercise their right to self-determination. But this was impossible to achieve for multiple reasons, chief of which was the disagreement between Morocco and Polisario over voter eligibility.
As holding a referendum proved elusive and establishing an independent state in southern Morocco unrealistic, the UNSC, the UN main’s organ entrusted with preserving international peace and security, abandoned the option and called on the parties to pursue a mutually acceptable political solution.
The UNSC has consistently urged this, enshrining it even more robustly since adopting Resolutions 2440, 2468, 2494 and 2548.
Contrary to what those analysts and lawmakers claim, by virtue of customary international law, the consistency of practice both of the UNSC and individual states and the UN’s consistent call for the parties to achieve a mutually acceptable political solution have produced legal consequences changing the conflict’s legal status. Consequently, the guiding principle and legal framework of the conflict is neither the ICJ ruling of 1975 nor the dispositions of the 1991 settlement agreement.
Inhofe’s allegations that the US administration has consistently upheld Sahrawis’ right to self-determination cannot stand scrutiny. Over the past two decades, the US has supported Morocco’s autonomy efforts. In November 2009, then Secretary of State Hillary Clinton said unambiguously that Morocco’s plan “originated in the Clinton administration. It was reaffirmed in the Bush administration and it remains the policy of the United States in the Obama administration.” The US position remained unchanged throughout the rest of the Obama administration and the Trump administration.
The true consensus about a referendum’s non-viability
Inhofe also alleges that the UN, EU AU and ICJ “all agreed the Sahrawi people have the right to decide their own future.” While it is true that the 1975 ICJ’s advisory opinion said the ties of allegiance between Sahrawi tribes and Moroccan sultans do not prejudge Sahrawis’ right to self-determination, claiming that the UN, EU and AU support a referendum could not be farther from the truth. As mentioned above, the UN has abandoned this option since 2007.
The EU’s position on the conflict aligns exactly with that of the UN, which abandoned the option in 2007. Europe reiterated this following Trump’s decision to recognize Morocco’s sovereignty over Western Sahara.
The EU’s spokesperson said that “The position of the EU on the Western Sahara dispute remains fully aligned with that of the U.N. Security Council and its resolutions on Western Sahara.” He added the EU supports the achievement of “a just, lasting and mutually acceptable political solution.” This language disproves Inhofe’s claim that the EU supports a referendum.
Furthermore, the UN Secretariat expressed no objection to Trump’s decision. When questioned on December 10, 11 and 21, Stephane Dujarric said: “I mean, our position on the announcements regarding Western Sahara is unchanged and that, for us, we continue to believe that a solution can be found through dialogue based on the relevant Security Council resolutions.”
He made no reference whatsoever to the referendum. He clearly asserted that UNSC resolutions, emphasizing 2440, 2468, 2498 and 2548, are the guiding principle for resolving the conflict.
The UNSC and UNSG’s language carries significant legal weight that no reasonable analyst could ignore.
Legitimacy of derecognition
Joseph Huddleston’s statement that Biden can easily “derecognize” Morocco’s sovereignty over Western Sahara is also incorrect. In international law, the recognition of states is discretionary; no state is obliged to recognize another. But once recognition occurs, and as de jure recognition through a statement or declaration, it is irrevocable.
The only exceptions are when a territory was acquired by force and when a Security Council resolution demands that member states abstain from recognizing the acquisition of a territory by force. This is not the case of Western Sahara, about which there is no such UN resolution. In addition, Morocco is not considered as a territorial occupier.
Huddleston conflates the legal status of Morocco, a sovereign state recognized by all UN member states, with that of the self-proclaimed Sahrawi Arab Democratic Republic.
Polisario has no territorial sovereignty and is an entity in exile. The self-styled SADR has none of the prerequisites of a sovereign state, nor has it international personality. This means states that have in the past recognized its existence can easily revoke their decision. Had it possessed the characteristics of statehood, Polisario’s self-state would have been a member of the UN and could enter into international treaties.
This explains why recognition of this entity has dwindled in recent years. This is not the case for Morocco. Hence the irrevocability of the US’ decision to recognize Morocco’s sovereignty over Western Sahara.
The reversal of Trump’s decision is impracticable not only because it would conflict with international law, but also because it would result in an unprecedented diplomatic crisis between Morocco and the US.
Washington is aware of the role Rabat has played in the past seven decades to preserve stability in the region and advance US interests. In addition, Morocco has for long enjoyed widespread bipartisan support in Washington notwithstanding dissonant voices such as that of James Inhofe. From this perspective, a Biden move to reverse Trump’s would be too risky.
Samir Bennis is the co-founder of Morocco World News. You can follow him on Twitter @SamirBennis.
