Biden cannot backtrack on the US recognition of Moroccan sovereignty over Western Sahara
By Moulay.Boubkir Hamdani
The step of the United States ’recognition of Moroccan sovereignty over Western Sahara by the former US administration has sparked a heated argument between opposing voices (John Bolton, Stephen Zones, R. Joseph Huddleston, Harshana Ghoorhoo, Daniela A. Maquera Sardon) and supportive opinions of this step (Bennis, Haddaoui), arguing whether the US administration, under Joe Biden’s presidency, will continue to support this recognition or will revoke it, in particular within the first 100 days in office.
For further analysis, this article will tackle the issue from a different perspective bearing in mind the position of international law of this recognition and starting from Presidential proclamation signed by Donald Trump which contains two main points. The US recognition of Moroccan sovereignty over the entire territory of Western Sahara and the American support for the Moroccan autonomy proposal as the only basis for a just and lasting solution to the Sahara conflict.
In view of International Law, recognition, like all other state actions, stems from the will and consent of the state, and that once recognition is announced, it becomes an argument that prevents the state from withdrawing its recognition (estoppel), in addition to the implications and legal obligations that may result after declaring recognition, which may restrict states in their actions and interests towards the state that has been recognized. This is due to the absence of an authority above that of the state in the international community that has the power to impose commands and restrictions on it. All acts of state stem from its will and consent, with the exception of actions that are imposed on it due to extreme circumstances such as force majeure or defeat in war.
As long as states can only act by and through their agents and representatives, and taking into account this legal case (US recognition of Morocco’s sovereignty over Western Sahara), the American Constitution does not explicitly assign the power to recognize foreign countries to any of the other authorities, but a constitutional custom has assigned this task to the American president since the era of President George Washington. Also, one aspect of jurisprudence indicated that this power is one of the core competencies of the executive authority, and sharing it with another authority would be a violation of the principle of separation of powers. In this context, the Supreme Court indicated in one of its judicial decisions that “the president is the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress but which, of course, like every governmental program, must be exercised in subordination to the applicable provisions of the Constitution”. Accordingly, Donald J Trump, in his capacity as President of the United States of America and under the authority vested in him under the Constitution and laws of the United States, declared that the United States recognizes that the Sahara region is part of the Kingdom of Morocco.
In addition, some international law jurists believe that recognition is a political act, not a legal procedure, rereferring to various cases of recognitions declared by states, being motivated by political interest or conflicts among countries
Recognition in the USA corresponds to the concept of approval as it recognizes the countries that gains its approval while refrains from recognizing countries it does not support, regardless of legal considerations. This case was best illustrated by the US’s recognition of Israel at its inception, albeit most of the international community at that time did not recognize the legitimacy of its existence. The representative of the USA to the United Nations W.R. Austin confirmed the political nature of his country’s recognition in his speech to the UN organization in May 1948., He said:
“I should regard it as highly improper for me to admit that any country on earth can question the sovereignty of the United States of America in the exercise of that high political act of recognition of the de facto status of a State. Moreover, I would not admit here, by implication or by direct answer, that there exists a tribunal of justice or of any other kind, anywhere, that can pass upon the legality or the validity of that act of my country.”
There are cases where the recognition of a state is based on condition that the new state fulfills conditions for the state of sovereign state (conditional recognition). The conditions attached varies from state to state such as religious freedom, the rule of law, democracy, human rights etc. the fact which is contained in the text of the Presidential Proclamation stipulating the continuation of adherence to the Moroccan autonomy proposal. For my part, this condition was set to facilitate progress towards this goal, which is the realization of self-determination for the inhabitants of the region in accordance with international law, the Charter of the UN. Hence, in terms of states ’responsibility for their actions, it would be irrational for the Biden administration to backtrack on the decision of the former administration, which it was not forced to take.
Then again, the legitimacy of the Moroccan presence in the Sahara was legally based on the recognition of the UN that Morocco represents the administering power of Western Sahara. In practice, Morocco has based its argument on the fact that in any of the UN Security Council Resolution or in the reports of the Secretary-General of the UN on the Sahara conflict, since 1975 until now, has never described Morocco as an occupying power or described Western Sahara as a colonial territory.
In addition, Spain never recognized the Sahara as a national territory because its recognition that the Sahara was part of Spanish territory would have made it impossible to transfer its administration to Morocco and Mauritania.
The Moroccan government could cancel its new diplomatic relations with Israel in case the US new administration retreated from Trump’s decision. Morocco under the King Mohammed VI has taken significant decisions vis-à-vis the regional and international issues. Morocco decided to close the Israeli Liaison Office in Rabat on October 25, 2000, and its Moroccan counterpart in Tel Aviv, due to the suspension of the peace process.
The claim that the US administration, by making the decision to Moroccan sovereignty over the Sahara, would abandon three decades of American support to freely determine the future of population of Western Sahara through a referendum is inaccurate. The US, in its capacity as the penholder of the resolutions on Western Sahara, have been always demonstrating a strong and constant commitment to resolving the conflict of Western Sahara.
The autonomy proposal came as a result of in-depth consultations between King Mohammed VI and the administration of President Bill Clinton. Since then, and all the way through the succession of American administrations, both the Democrats and the Republicans, the USA has provided support for autonomy plan, which has been enshrined in all Security Council resolutions since 2007.
Morocco has made steadfast efforts to consolidate the foundations of the country’s political institutions, the rule of law and promotion of human rights through the conduct of transparent election, the establishment of the Ombudsman and the regional human rights committees in Laayoune and Dakhla, as well as the launch of a development model for the benefit of the local population in the Sahara, with a budget of more than 7 billion dollars.
The geostrategic importance of the Sahara region resides in its position to serve as a pivotal starting point for the United States to the African continent, whose market, with more than one billion consumers, is witnessing strong competition among rival superpowers, mainly France and China. Accordingly, the opening of a consulate in the city of Dakhla in the Western Sahara will provide ample space to enhance economic and commercial opportunities for the United States in Africa, increase the potential for development of the population, and support the peace process, democracy and human rights in the region.
In sum, based on all the forementioned arguments, there is absolutely no way Biden administration can backtrack on the decision of the US recognition of Morocco’s sovereignty over the Sahara.
Moulay Boubkir Hamdani is the President of Center for Strategic Thinking and Democracy and Defense of Democracy Specialist in Foreign Policy and Democratic Transition issues.
