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Washington D.C. – Ever since former US President Donald Trump recognized Morocco´s sovereignty over Western Sahara, Algeria and Polisario’s supporters have responded in droves to denounce the move and dismiss it as a “flagrant” violation of international law.
Accustomed for four decades to dominating the narrative about the Sahara conflict by mobilizing falsified or misleading – but seductive – arguments, they sought to entertain the illusion that the US´ decision constitutes a departure from a global consensus. The “consensus” they speak of regards a “need” to enable the Sahrawi population to exercise their right to self-determination via a referendum.
This predominant narrative has no interest in the fact that the practice the UN Security Council has pursued during the last 13 years produced a customary law whose impact on both the present and the future of the Western Sahara conflict cannot be ignored.
Read also: Western Sahara: What Polisario Advocates Don’t Want You to Know
The Security Council, the UN’s executive organ, has not mentioned a referendum since adopting Resolution 1754 in 2007. The term only appears in UNSC resolutions when referring to the designation of the UN Mission for the Referendum in Western Sahara (MINURSO).
Consistency of practice, one of the principles of customary international law, indicates that, from the UNSC’s perspective, an end to the conflict will only come through negotiations leading to a mutually acceptable political solution.
The UNSC has endorsed this practice more robustly since adopting Resolutions 2440, 2468, 2494, and 2548. The United Nations Secretary General also indicated, in paragraph 77 of his last report, that the basis for a political solution is Resolution 2440 and subsequent resolutions.
Additionally, based on the principle of consistency of practice, the UNSC welcomed Morocco’s Autonomy Plan in its 13 resolutions since 2007, while only “taking note” of Polisario’s counterproposal. The one exception was 2016, when the UNSC resolution merely took note of the two proposals.
The annual reports successive UNSGs have submitted to the UNSC contain no call to solve the conflict through a referendum. Neither the former nor the current UNSG has called for a referendum.
Moreover, the UNSC’s role in maintaining international peace and security gives its resolutions a binding character. This is true not only for the Council’s member states, but for all UN member states. Although some specialists say the binding nature of Security Council resolutions is limited to those adopted under Chapter VII of the UN Charter, this reading is based on a restricted interpretation of the Charter.
It also overlooks the Charter’s paragraph 24, by virtue of which member states “confer on the Security Council primary responsibility for the maintenance of international peace and security and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.” As a number of jurists have pointed out, Security Council resolutions are binding regardless of whether they are adopted under Chapter VI or Chapter VII.
What makes UNSC resolutions on Western Sahara binding is their language, insofar as they call on the parties to reach a mutually acceptable political solution and to abide by all resolutions adopted since 2007. Such mandatory nature also comes from UN member states’ acceptance of the resolutions’ authority and their commitment to their dispositions in subsequent conduct.
The United Nations did not object to the US’ decision
Following former US President Trump’s decision, the UN made no statement opposing it, rejecting it, or saying that it contrasts with Western Sahara’s legal status. Moreover, in statements to the press on December 10 and 11, UNSG Spokesperson Stephane Dujarric made it clear that Resolutions 2440 and 2548 are the legal framework of the conflict.
Dujarric expressed the same views after the UNSC meeting on December 21. This rules out any likelihood of envisaging the referendum as a way to end the conflict.
In line with the principle of consistency of practice in customary international law, that both the UNSC and the UN General Secretariat have reiterated that UNSC resolutions are the only framework for resolving the conflict shows that the legal status of Western Sahara has changed.
Contrary to popular belief, international law is not immutable, but can undergo changes resulting from the emergence of new practices. This means the conflict will no longer be addressed within the confines of the International Court of Justice’s (ICJ) 1975 advisory opinion or the dispositions of the 1991 settlement agreement.
The conflict will rather be governed by UNSC resolutions, which stress the need to reach an agreed upon political solution while implicitly acknowledging the Moroccan Autonomy Plan’s potential to help the parties to achieve that goal. The Autonomy Plan does not contradict the principle of self-determination. In addition to independence and integration, it is one of the three options for exercising this right.
Consistency of member state practice
Furthermore, the principle of consistency of practice at the bilateral level also applies to how an overwhelming majority of countries have addressed the conflict in statements over the past 13 years. Most countries, including the permanent members of the Security Council, have reiterated their support for a mutually acceptable political solution, while describing the Moroccan Autonomy Plan as “serious, realistic and credible.”
None of these countries has ever stated that Polisario’s counterproposal, submitted in 2007, could constitute a basis for a political solution. The consistency of practice during the same period, as well as the majority of UN member states’ continuous support for the political process, have produced legal consequences in accordance with customary international law.
Though Algeria, South Africa, and a dozen other countries still call for a referendum, their position does not preclude the legal effect resulting from the consistency of practice regarding the political solution. In order for a practice to acquire the force of customary international law, “it does not have to be universally followed but must nevertheless have obtained widespread acceptance.”
The consistency of the US’ position with international practice
Applying this concept to the US’ December 2020 decision on Western Sahara, one can conclude that contrary to claims by former Special Envoy Christopher Ross, former National Security Adviser John Bolton, and former Secretary of State James Baker, the decision in no way violates international law.
It is rather a concrete materialization of a practice the US has followed since Morocco submitted its Autonomy Plan: The constant and consistent assertion that the proposal “is serious, realistic, and credible.”
This is the language that the US has consistently used since 2007. In November 2009, then Secretary of State Hillary Clinton was adamant about the consistency of the US’ position on the conflict. She said Morocco’s proposal is a “plan that 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. I don’t want anyone in the region or elsewhere to have any doubt about our policy, which remains the same.” She reiterated the consistency of the US’ position in September 2012.
This is also the language that former President Barack Obama used following the summit meeting he held with King Mohammed VI in November 2013. The Trump administration used the same language before its decision to recognize Morocco’s sovereignty over Western Sahara.
The consistent use of this language, whether by the US or by most countries, gives it legal force under customary international law. Consequently, Trump’s decision aligns with international law, regardless of Algeria and Polisario supporters’s unremitting attempts to ignore these facts and mislead international public opinion and decision-makers into believing otherwise.
The referendum was also the result of consistency of practice
International law and customary international law reflect the practice of sovereign states in any given period of time. Because of the consistency of practice, the referendum principle to which parties supporting Polisario adhere is no longer considered as a viable option or basis for a lasting settlement. Morocco accepted a solution to the Western Sahara dispute through a referendum in 1965, a solution of which most countries approved and felt was an optimal means for the conflict’s resolution at the time.
Eight years before Algeria-backed Polisario emerged as a major player, the referendum was not among the options available to end Spain’s colonial presence in the Sahara. Until 1965, the UN General Assembly Spain had repeatedly urged Spain to negotiate with Morocco over Western Sahara and Sidi Ifni.
As Spain showed no desire to abide by the UNGA’s resolutions and was rather taking steps to ensure an outcome favorable to its long-term interests, Morocco called on the UN in December 1966 to enable the Sahara’s population to end Spain’s occupation by means of a referendum of self-determination. It was at Morocco’s initiative that the UN took on the Western Sahara dossier. Even more important, it was Rabat’s good faith to facilitate the work of the UN Special Decolonization Committee that led the Moroccan government to decide to dissociate the conflict of Ifni from that of the then Spanish Sahara.
With this decision, however, Morocco made clear that it did not prejudge its territorial claims over the territory, while pointing out that that avenue was a way to enable the Sahrawis to freely rejoin their Moroccan homeland. Morocco had no doubt that a referendum would have tilted in its favor, inasmuch as the Sahrawis considered themselves Moroccans. Yet, Spain did not abide by the General Assembly’s decisions or its commitment to Morocco.
Since then, the consistency of practice that resulted from Morocco’s decision to call for a referendum and its endorsement by UNGA resolutions in later years cemented it as the means through which a solution to the conflict could be achieved. This was one reason that led the ICJ to issue its advisory opinion in 1975, which carried many contradictions and was more political than legal.
This principle still applies in international law, regardless of who it favors. The UN’s consistency of practice in recent years, a consistency that favors reaching a political solution based on the Moroccan Autonomy plan, has changed the legal status of Western Sahara.
Samir Bennis is the co-founder of Morocco World News. You can follow him on Twitter @SamirBennis.
