While the quarrel over the construction of a new wall along the Mexican border hampers the functioning of the federal apparatus in the US, an already existing barrier in the African continent represents the protraction of a political stalemate connected to the legal principles of territorial integrity and self-determination. It is the “berm” separating Morocco from part of the resource-rich Western Sahara. The latter is a non-self-governing entity according to the United Nations and an integral part of Morocco’s territory in the view of Rabat.
The controversy over Western Sahara is rooted in colonialism, when Spain was the relevant administering power. The ensuing decolonisation left Western Sahara in the hands of the neighbouring Morocco which engaged in an open-ended conflict with the nationalist Polisario Front. After decades of confrontation and in a profoundly changed political environment, the question of Western Sahara still revolves around the means by which to fulfil the recognised right to self-determination of the Sahrawi people. The Algeria-backed Polisario Front only envisages a referendum to achieve full independence; Morocco is willing to exclusively concede graduated forms of autonomy.
In December 2018 negotiations to establish the future path for Western Sahara – in between independence and incorporation – reopened in Geneva after halting in 2012. These negotiations comprised Morocco, the Polisario Front, Algeria and Mauritania and aimed at finally reaching a comprehensive agreement in the face of continuous immobilism. The meeting occurred under the wing of the United Nations which had a meaningful role in the consolidation of the status quo and is also present on the ground with the MINURSO peacekeeping mission since 1991. The United Nations Security Council lastly intervened in the context of Western Sahara with Resolution 2440 extending further the mandate of MINURSO. This decision was facilitated by the support of the Trump administration of the United States. Wider considerations on the stability of the surrounding area – affected by division and violence – demanded in fact greater efforts towards the resolution of the long-standing controversy over the establishment of the rightful regime in Western Sahara. Morocco rejects the Polisario-Front-led Sahrawi Arab Democratic Republic which is nonetheless recognised by the African Union and bolstered by Algeria which hosts a number of Sahrawi refugees. In addition to the forced displacement of many locals, Morocco has deliberately encouraged the alteration of the composition of the population of Western Sahara by favouring internal mobility while investing a lot in the infrastructural and economic development of the area.
Beyond the security concerns, business and natural resources are also relevant to the issue of Western Sahara. Several countries entertained prolonged economic and legal relations with Morocco that incorporated Western Sahara. This circumstance is problematic in the light of the international-law clauses which apply to the territory. Accordingly, the Sahrawi people of Western Sahara enjoy the right to self-determination as it was declared inter alia by the International Court of Justice in its advisory opinion of 1975. The right to self-determination is enshrined in the International Covenant on Civil and Political Rights (ICCPR) and entails that selected groups may freely determine their preferred system of political organisation. The right to self-determination is inextricably linked with another fundamental provision of international law: permanent sovereignty over natural resources. This paramount right prescribes that each (internationally recognised) nation has exclusive jurisdiction over the natural resources located on the territory which it inhabits. As Morocco has de facto controlled Western Sahara for an extended period of time despite the call for the completion of the process of decolonisation – spurring technical debates over the possible application of the law of occupation to the case – the Sahrawi community has hardly reaped the fruits of the alienation of its resources.
The European Union for example has had a Fisheries Partnership Agreement with Morocco since 2007. This agreement allowed EU Member States to operate in the waters off the coast of Western Sahara. However, the European Court of Justice (ECJ) ruled in 2018 that the agreement could not cover Western Sahara because of its unsettled political status. The ECJ had previously expressed similar views regarding trade, the association agreement and customs duties. The ratification of international treaties in such an unsteady setting is very significant because it falls under the scope of the actions not to be taken pursuant to the obligation of non-recognition of States’ unlawful acts. Accordingly, by entering into agreements with Morocco covering also Western Sahara without consulting the representatives of the Sahrawi people, the EU risks legitimising the controversial behaviour of Rabat vis-à-vis its bountiful neighbour. This point was addressed in the early 2000s by the Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations Hans Corell: he held that international trade involving the contested territory could be accepted provided that the related revenues benefitted the local population. Corell’s stance has been later criticised in academic venues.
The results that this last round of negotiations will attain, considering that Morocco might exploit the issue of Western Sahara to gain greater leverage in other domains, remain to be seen. What surely transpires from this protracted deadlock is the ontological implications of international law. At the height of the popularity of the United Nations and following the enthusiasm caused by the wind of decolonisation, the indigenous people inhabiting the former Spanish protectorate Western Sahara – in contrast to the larger and smaller groups which have unsuccessfully pursued autonomy over the years – were deemed to constitute a nation worthy of self-determination. The expectations arising from that legal fiction (belonging with all the other artifices which shape to a great extent the world as we know it) faced the realist objectives of Morocco hence a major obstacle to their realisation. After years of skirmishing chiefly afflicting local communities, diplomacy is now sought after to fulfil the original requests of a fabricated system.