1. Introduction
Western Sahara has been described as ‘the last African territory awaiting decolonization’.Footnote 1 The status of this territory and of the hundreds of thousands of Sahrawis who are either still living in Western Sahara or elsewhere has driven an armed conflict and been the topic of international negotiations, United Nations (UN) General Assembly resolutions, an advisory opinion of the International Court of Justice (ICJ) and, on 10 December 2020, a series of tweets by then-President of the United States Donald Trump.Footnote 2 The first of those tweets was how most of the world first learned of the US recognition of Moroccan sovereignty over Western Sahara:Footnote 3
Today, I signed a proclamation recognizing Moroccan sovereignty over the Western Sahara. Morocco's serious, credible, and realistic autonomy proposal is the ONLY basis for a just and lasting solution for enduring peace and prosperity!
There was also a formal proclamation which stated, in part:Footnote 4
[T]he United States recognizes Moroccan sovereignty over the entire Western Sahara territory and reaffirms its support for Morocco's serious, credible, and realistic autonomy proposal and the only basis for a just and lasting solution to the dispute over the Western Sahara territory. The United States believes that an independent Sahrawi State is not a realistic option for resolving the conflict and that genuine autonomy under Moroccan sovereignty is the only feasible solution.
In a second tweet, President Trump wrote: ‘Morocco recognized the United States in 1777. It is thus fitting we recognize their sovereignty over the Western Sahara’.Footnote 5
Others disagreed. A bipartisan group of 25 US senators called the recognition ‘abrupt’ and wrote that it ‘was short-sighted, undermined decades of consistent US policy, and alienated a significant number of African nations’.Footnote 6 Former Secretary of State, James Baker – who had worked as an envoy of the UN Secretary General to find a peaceful and just resolution to the Western Sahara dispute – called it a ‘rash move disguised as diplomacy [that] will contribute to the existing deadlock in resolving the longstanding conflict between Morocco and the people of Western Sahara over the status of that territory’.Footnote 7
Press reports described the US recognition as part of a deal that the Trump administration had struck for Morocco's normalisation of diplomatic relations with Israel.Footnote 8 However, simply describing these events as a one-off transaction ignores that this is the latest chapter in a decades-long saga concerning self-determination, human rights and territorial contestation. As at the time of this writing, there is no indication that the Biden administration intends to revoke the recognition.
This article considers the international legal issues of US recognition of Moroccan sovereignty over Western Sahara. It begins with a summary of the history that is particularly relevant for this discussion. It then considers the interaction of arguments based on the recognition and non-recognition of territorial sovereignty with those prioritising the right of self-determination. It concludes that, in as much as the population of Western Sahara has a right to decide its own future, US recognition of Morocco's sovereignty over Western Sahara was precipitous and undermined key principles of international law.
2. Historical Background to the Situation in Western Sahara
The land now called Western Sahara is the home of a semi-nomadic people, the Sahrawis, who trace their roots to peoples who had lived in the region for hundreds, if not thousands, of years. The areas in which Sahrawis live extend beyond the boundaries of Western Sahara. Spain, the main European colonial power in the region, had brief settlements along the Saharan coast in the fifteenth and sixteenth centuries and began sustained colonisation in 1884.Footnote 9
France maintained colonial control over Morocco from 1912 until 1956, when Morocco regained independence.Footnote 10 In the following year Morocco made a claim on the territory of what was then called ‘Spanish Sahara’, arguing that ‘certain African territories at present under Spanish control … [were] an integral part of the Moroccan national territory’.Footnote 11 Subsequently, Mauritania also made its own claim on part of Western Sahara, arguing that it had been a part of a previous Mauritanian polity.Footnote 12
In 1963, as part of the decolonisation process, Spain transmitted to the UN information concerning the Spanish Sahara, placing it on the UN's list of ‘non-self-governing territories’.Footnote 13 In 1966, the UN General Assembly requested that Spain organise a referendum of the population of Western Sahara to determine its future.Footnote 14 As Thomas Franck later observed, it had become ‘virtually standard practice to encourage colonial populations, at the moment just before independence, to participate in a genuine act of free choice’.Footnote 15 However, it was not until 1974 that Spain began moving towards a referendum, at which point Morocco ‘sought, as a minimum, to postpone the planned referendum … [i]t successfully did so by proposing that the General Assembly request an advisory opinion from the ICJ on the status of Western Sahara’.Footnote 16
In the proceedings before the ICJ, Morocco argued, among other things, that it had historical title over Western Sahara and that, in any case, statehood for Western Sahara was not a foregone conclusion because the principle of self-determination interacted with the principle of the territorial integrity of states, such that there was a range of possible options that would reconcile these two principles.Footnote 17
The Court issued its opinion on 16 October 1975. The judges were not persuaded that there was an issue of territorial integrity in this case that superseded the application of the principle of self-determination. Rather, after examining claims of sovereignty by Morocco and Mauritania, the ICJ wrote:Footnote 18
[T]he Court's conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.
The Court noted that, between 1966 and 1974, Morocco had made statements accepting self-determination as applicable to the situation in Western Sahara and that, in the years leading up to the advisory opinion, the General Assembly had ‘maintained its approach to the question of Western Sahara, and reiterated in more pressing terms the need to consult the wishes of the people of the territory as to their political future’.Footnote 19
In effect, Morocco's claim based on territorial sovereignty was rejected by the ICJ by 14 to 2.Footnote 20 Moreover, on 10 October 1975, a few days prior to the announcement of the advisory opinion, a UN General Assembly mission to Western Sahara had issued a report stating that ‘it became evident to the Mission that there was an overwhelming consensus among Saharans within the Territory in favour of independence and opposing integration with any neighbouring country’.Footnote 21 Between the advisory opinion and the Mission's report, the result seemed clear: the realisation of self-determination through what Franck had referred to as the ‘virtually standard practice’ of free choice of the local population.Footnote 22
Nonetheless, in the days and years that followed, that is not what happened. In the immediate aftermath of the decision, the government of Morocco organised a ‘Green March’, which envisioned up to 350,000 Moroccan citizens walking into Western Sahara.Footnote 23 This put Spain, as the administering power, in a potentially explosive situation; however, three days after the march began and after a series of diplomatic discussions, the King of Morocco told the marchers who had entered the territory to turn back.Footnote 24 Morocco, Mauritania and Spain issued a statement that they had agreed that Spain would withdraw from Western Sahara by 28 February 1976.Footnote 25
At about the time of the conclusion of this agreement, known as the ‘Madrid Accords’, Moroccan and Mauritanian forces began military operations in Western Sahara.Footnote 26 This was the start of protracted armed conflict between the Moroccan army and the Polisario, a Sahrawi independence movement.Footnote 27 (Mauritanian forces left the conflict in 1979.) As Martin Dawidowicz wrote, including a contemporaneous quote from a report of the UN Secretary General: ‘In effect, Morocco appeared determined to create a situation in which the carefully elaborated UN position on the decolonization of Western Sahara would simply be “overtaken by events”’.Footnote 28 According to other commentators, the conflict ‘precipitated a refugee crisis that saw around 40 per cent of the native Sahrawi population flee to southern Algeria, where they remain to this day in camps near the town of Tindouf’.Footnote 29
In February 1976, the leadership of the Polisario declared the existence of a new state, the Sahrawi Arab Democratic Republic (SADR).Footnote 30 Over the years, the SADR has been recognised in some form by approximately 80 states and, after some debate, was granted a seat in the Organization of African Unity (OAU).Footnote 31
The conflict dragged on and the years passed without a referendum. According to the International Crisis Group, by 1988 the ‘combination of the Polisario Front's inability to sustain its military resistance and Morocco's inability to secure diplomatic endorsement eventually provided the basis for a kind of negotiation’.Footnote 32
A ‘Settlement Plan’, jointly supported by the UN and the OAU, and agreed ‘in principle’ by the parties in 1988, provided a framework for a ceasefire between the Polisario and the Moroccan Army as well as a referendum on the status of Western Sahara.Footnote 33 The Secretary General's June 1990 report to the Security Council explained that the parties agreed to a referendum ‘in Western Sahara to enable the people of the Territory to decide their own future freely and democratically’.Footnote 34 It further explained that ‘[t]he referendum will be organized and conducted by the United Nations, in cooperation with OAU, during a transitional period’.Footnote 35 The UN established the Mission for the Referendum in Western Sahara (MINURSO) in April 1991.Footnote 36 Using the 1974 census of Western Sahara as a starting point, and taking into account births, deaths and population movements, the UN would ‘establish as precisely as possible the number of Saharans living in the Territory of Western Sahara and the number of Saharan refugees and non-residents qualified to participate in the referendum’.Footnote 37
As explained by Erik Jensen, who was head of mission for MINURSO from 1994 to 1998, there were significant disputes despite the ‘agreement in principle’.Footnote 38 Morocco maintained that it had placed limits on what it had agreed in the proposals that were originally set out in 1988.Footnote 39 One critical problem was that Morocco and the Polisario had different conceptions ‘regarding who should be the “self” in an act of self-determination’,Footnote 40 and, in particular, how closely eligibility should be tied to the 1974 census. The Polisario maintained that those eligible to vote must be ‘based on the 1974 census, revised to eliminate those who had died in the intervening years and to include the modest number of additional persons who had been inadvertently omitted at the time’.Footnote 41 While the Polisario defined eligibility as related to the population of the territory, Morocco's view was that eligibility should not be based on territorial population but rather include people, in or outside Western Sahara, who are of Sahrawi lineage.Footnote 42 This would allow, for example, people who lived in Southern Morocco, who were arguably Sahrawi by lineage but had not lived in Western Sahara, to vote in the referendum. The implication was that this population living in Southern Morocco would prefer that Western Sahara become part of Morocco. In practice, ‘[o]f 195,589 persons ultimately identified, 86,412 were found eligible’ by MINURSO.Footnote 43 There were subsequent appeals for over 131,000 people who were not deemed eligible.Footnote 44
A second issue was whether independent statehood would be presented as an option in the referendum. The Polisario insisted on its inclusion; Morocco refused to have statehood as an option. These points of contention became significant, although they were not the only impediments to resolution of the conflict.
In 1997, UN Secretary General Kofi Annan asked former US Secretary of State James Baker to act as his envoy with regard to Western Sahara. After an initial plan was rejected by Morocco, a second Baker Plan, in 2003, set out a mechanism for a referendum that would give the population a choice between independent statehood and some form of autonomy within Morocco.Footnote 45 A 2003 Security Council resolution stated that the Council ‘support[ed] … [this] Peace plan for self-determination of the people of Western Sahara as an optimum political solution on the basis of agreement between the two parties’.Footnote 46
However, as the second Baker plan included independence as a possible result, the plan was rejected by Morocco.Footnote 47 Morocco subsequently withdrew from the referendum process,Footnote 48 thus putting into question the path for peaceful dispute resolution.
In April 2007, Morocco sketched out its own proposal that would grant autonomy to a region of unspecified size, over which Morocco would retain sovereignty.Footnote 49 The proposal was to be left open for further negotiation and a referendum of the population of the region. The mechanics and the scope of the referendum were unclear, although the possibility of independence did not seem to be on the table. It was perhaps the vagueness of the proposal that assisted in its garnering some support from various governments.Footnote 50 However, the vagueness also led to significant concerns; the International Crisis Group noted that the autonomous region might be defined to include communities currently in Southern Morocco, thus leading to a dilution of voting power of the population of Western Sahara.Footnote 51 In addition, the proposal did not include the possibility of independence.
Years passed. There was a period of optimism in 2017 when there had been ‘headway in negotiations between the different parties’, but by 2019 ‘the diplomatic process stalled: preliminary peace talks went nowhere’.Footnote 52 Moreover, ‘Morocco accelerated its creation of facts on the ground’.Footnote 53 For example, it invited states to establish representations in Western Sahara and more than 15 states did so between 2019 and 2020.Footnote 54 The Polisario leadership viewed these actions as violations of international law and a ‘breach of the international legal status of Western Sahara as a Non-Self-Governing Territory’.Footnote 55
In 2020, the parties still had fundamentally different perspectives of the underlying legal issues. The Secretary General noted in his 2020 report on Western Sahara that, on 5 November 2019, the King of Morocco said that the 2007 autonomy proposal of Morocco was ‘the only way forward towards a settlement guaranteeing full respect for the Kingdom's national unity and territorial integrity’.Footnote 56 The 2020 report also said that ‘[i]n a statement on 7 November 2019, Frente POLISARIO stated that “the Sahrawi people will continue their struggle for freedom and independence”’.Footnote 57
In November 2020, the Polisario declared that the ceasefire that had been in place since 1991 was terminated because the Moroccan army was used to end a Polisario blockade of a road in Western Sahara that the Polisario maintained had been built illegally by Morocco.Footnote 58 It was in this context that, in December 2020, the US recognised Morocco's sovereignty over Western Sahara and reiterated support for Morocco's autonomy plan for Western Sahara.
With tensions rising once again, in October 2021 the Security Council called upon the parties:Footnote 59
to resume negotiations under the auspices of the Secretary-General without preconditions and in good faith, taking into account the efforts made since 2006 and subsequent developments with a view to achieving a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations.
A few days later, on the 46th anniversary of the Green March, Morocco's King Mohamed VI said: ‘Today as in the past, Moroccan sovereignty over Western Sahara will never be up for negotiation’.Footnote 60 By this point, according to Stephen Zunes, ‘Moroccan settlers outnumber Western Sahara's indigenous inhabitants’.Footnote 61 Certain commentators discern that ‘[a] pattern of rhetorical condemnation over Morocco's occupation of Western Sahara, coupled with delays to the referendum without political retribution, has led to a stagnant peace process’.Footnote 62
The parties to this dispute have fundamentally different interpretations of the facts. For the population of Western Sahara, this is a story of denial of the right of self-determination. The history of the peace negotiations is one in which arguments over process, such as who is eligible to vote in the referendum, are actually disputes about the fundamentals of self-determination. For the government of Morocco, at issue is the recognition of Moroccan territorial sovereignty and respecting the territorial integrity of an existing state. The next section will consider these differing conceptions of the relevant law and facts and Section 4 will return to the question of the role of recognition in the midst of these competing conceptions.
3. Are Self-Determination and Territorial Sovereignty Competing Narratives?
3.1. Self-Determination
Self-determination is the right of ‘peoples’ to ‘freely determine their political status and freely pursue their economic, social and cultural development’.Footnote 63 The UN Charter lists self-determination as one of the purposes of the organisation and it is further detailed, among other places, in Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which was quoted in the preceding sentence.Footnote 64 Moreover, self-determination includes certain responsibilities for states, as explained in Article 1(3) of the ICCPR and ICESCR:Footnote 65
The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
Morocco is a UN member state, as well as a party to both the ICCPR and the ICESCR.Footnote 66
In addition, the right of self-determination is also generally understood to exist under customary international law. Numerous UN General Assembly and Security Council resolutions, not to mention pleadings before the ICJ and various ICJ opinions, including the Western Sahara advisory opinion, refer to peoples having the right of self-determination based on various sources of law.Footnote 67
While the precise meaning of the term ‘peoples’ has been the source of some debate, modern practice clarifies that the variety of entities with a right of self-determination include former colonies, the total citizenry of a state itself, areas which are ‘non-self-governing’ such that the inhabitants have no say in how they may govern their own lives, and any entity if the parties involved in the dispute have agreed that self-determination was an ‘appropriate solution’ for the situation.Footnote 68 The term ‘self-determination unit’ is sometimes used to describe these various entities with rights of self-determination.Footnote 69
The UN General Assembly has affirmed and reaffirmed that Western Sahara is a non-self-governing territory in the midst of decolonisation and that its population has a right of self-determination.Footnote 70 As discussed in the previous section, a question which has hampered negotiations is whether the eligible voters (i) should primarily (with some adjustments) be the population of Western Sahara, as derived from the 1974 census, or (ii) (based on one Moroccan position) whether the voting rolls should include some or all Sahrawis who live in Morocco, not just in Western Sahara, or (iii) (as in Morocco's 2007 autonomy proposal) whether the voters should be the concerned populations in the proposed (but undefined) autonomous region.Footnote 71 Morocco has emphasized this issue because who votes in the referendum is likely to have a significant effect on which option is chosen. It is important to note, though, that both the General Assembly and, consequently, the ICJ have used terminology that focused on the self-determination in relation to the population of Western Sahara.Footnote 72
In any event, while there is some disagreement over what, to paraphrase Jensen, constitutes the ‘self’ in ‘self-determination’ (such as whether in this case it includes ethnic Sahrawis outside Western Sahara), it is that self – and not an outside actor – who is supposed to decide its political and economic path.Footnote 73 Thus, at the very least, there needs to be a meaningful choice made by the population of Western Sahara. Next, we turn to what such a choice would entail.
It is well established that in cases of decolonisation, self-determination gives the population of the former colony the right to choose its future with a range of possible results, which include the formation of a newly independent state, full integration with an existing state, or autonomy within an existing state. Thus, former colonies may opt to become independent states while, outside the context of decolonisation, it is generally accepted that self-determination consists of remedies based on the protection of civil, political and cultural rights within the pre-existing state. Whether there is such a thing as ‘remedial secession’ outside a situation of decolonisation is highly controversial.Footnote 74 Consequently, Morocco would want to argue that Western Sahara is part of the Moroccan polity and allowing it to become an independent state would not be decolonisation, but rather secession.
As a former colony and a non-self-governing territory, the population of Western Sahara has a right of self-determination that can be expressed, at its option, by forming a new state, among other possible outcomes.Footnote 75 The ongoing military occupation of Western Sahara by Morocco and the population movements into the territory do not extinguish the right of self-determination. The latter, however, does complicate defining precisely who in the population of Western Sahara today should be able to participate in any plebiscite or referendum concerning self-determination.
Morocco has emphasised that it views its autonomy plan as the only viable option for a lasting peace.Footnote 76 However, the choice among possible outcomes is reserved for the people who live in the former colony,Footnote 77 setting aside for now whether that would include those who have taken up residence in Western Sahara since 1975. To allow Morocco to impose its own preferred outcome upon the population of Western Sahara, after decades of manoeuvring trying to change the ‘facts on the ground’, would be to deny self-determination to that population. The process of self-determination – whether and how the population in question had the opportunity to exercise its freedom of choice – is an inextricable part of the overall right of self-determination. To be denied right process is to be denied the right.
3.2. Territorial Sovereignty
Morocco's attempts to reframe the situation in Western Sahara as being primarily about territorial sovereignty is an attempt to avoid the possibility of Western Saharan independence by operation of the right of self-determination. International law classifies how territory may legally be acquired and transferred and thus sets out which states have legal title to which territory.Footnote 78 Sir Robert Jennings, prior to becoming a judge of the ICJ, set out in a seminal monograph five traditional means of acquisition:Footnote 79
(1) occupation, viz. of territory which is not under sovereignty of anyone; (2) prescription, by which title flows from an effective possession over a period of time; (3) cession, or the transfer of territory by treaty provision; (4) accession or accretion, where the shape of land is changed by the processes of nature; and finally (5) subjugation, or, if you prefer the older terminology, conquest.
In practice, tribunals often also consider factors that include ‘recognition, acquiescence and preclusion; possession and administration; affiliations of inhabitants of the disputed territory; geographical considerations; economic considerations; [and] historical considerations’.Footnote 80
If Morocco already had title over the territory of Western Sahara, then the legal context would not be decolonisation of Western Sahara and there would be significant weight for respecting the integrity of an existing state, Morocco. Moreover, Morocco's dispatch of troops into Western Sahara would not be a conquest, but lawful action within its domestic jurisdiction.Footnote 81 However, a state claiming that it already has title to territory has the initial burden of proof.Footnote 82 In the proceedings concerning Western Sahara, Morocco's supposed evidence based on the texts of treaties and sociological arguments did not persuade the ICJ.
More generally, though, modern international law does not try to re-establish the borders of polities from some earlier period in the history of a given state. A rule that invites such revision would undermine stability, inviting states to argue over which previous version of their territories should be reconstituted. As Thomas Franck wrote, contrasting historical irredentism with self-determination, ‘[g]enerally, neighboring states have not been allowed to help themselves to adjacent territories on the basis of historic claims; boundary readjustments must come as an expression of the democratically expressed will of those subject to the readjustment’.Footnote 83 Similarly, as James Crawford explained: ‘Claims based on ethnic identity or on some real or asserted territorial integrity at some earlier date are excluded: there is no principle of reversion to some earlier and superseded territorial formation’.Footnote 84 Rather, the borders of a newly independent state after decolonisation are based on its pre-existing colonial borders, a rule called uti possidetis. While there are many arguments against such a rule, its application has been supported, including by the OAU, as a means of maintaining stability.Footnote 85 Based on this, at the time of independence, the territory of Morocco would include only the territory of the former French colony and not of the Spanish colony that was Western Sahara.Footnote 86
4. The Role of Recognition
Recognition ‘involves the acceptance by a state of any fact or situation occurring in its relation with other states’.Footnote 87 The recognition of states and of governments are probably the best-known forms of recognition; however, it is the recognition of territorial change that is especially relevant here. States, in seeking maximum latitude for their own decisions, reiterate that recognition in its various forms is primarily a political decision by the recognising state.Footnote 88 However, it also bears emphasising that it is a political decision within a legal framework and with legal effects.Footnote 89
Using the term in its broadest sense, we can also consider treating a particular group as a ‘people’ as being tantamount to ‘recognising’ it as a self-determination unit. For example, one of the ways in which self-determination can apply is by mutual agreement of the parties, essentially where one party claims to have a right of self-determination and the other party recognises that it does. Choosing to recognise a particular entity as having a right of self-determination is a decision that is rendered within a legal framework; only certain entities can justifiably claim to be self-determination units and it affects the responsibilities of the recognising state.Footnote 90 If we consider the current situation as a question of the effects of recognitions addressing overlapping concepts, can these competing recognitions be resolved?
In the case of Western Sahara, the General Assembly has referred to the population of Western Sahara as a ‘people’, in the sense of being a population that had been under colonial control, with a right of self-determination.Footnote 91 The ICJ has noted that Morocco itself (without abandoning its other arguments) had accepted self-determination as applying to the situation in Western Sahara.Footnote 92 However, Morocco's core strategy has been to pursue explicit, or at least implicit, recognition of its territorial claim over Western Sahara. As at the time of this writing, it has received at least one such explicit recognition from the United States, and possibly evidence of implicit recognition from other states with the opening of their consulates in Western Sahara.
While the fact sheet released by the White House Press office at the time of the recognition stated that ‘[t]his recognition leaves room for a negotiated solution’,Footnote 93 it begged the question as to what negotiating leverage the Sahrawi people would have once Moroccan sovereignty over Western Sahara was recognised.
In the case of Western Sahara, the issue is whether a state should, or legally could, choose to recognise Moroccan territorial sovereignty and effectively winnow the options of the Sahrawis such that independence would not be an option (at least in the eyes of the recognising state). Is there an obligation not to recognise Morocco's claim?
The International Law Commission states in Article 41(2) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) that ‘[n]o State shall recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation’.Footnote 94 Article 40 defines a breach as ‘serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation’, which, by the terms of the article ‘aris[es] under a peremptory norm of general international law’.Footnote 95
The commentary to Article 41 notes that an example of such a ‘situation’ would be the ‘attempted acquisition of sovereignty over territory through the denial of the right of self-determination of peoples’.Footnote 96 While states may disagree as to which specific situations are actually illegal,Footnote 97 the ARSIWA commentary explains that ‘[t]he existence of an obligation of non-recognition in response to serious breaches of obligations arising under peremptory norms already finds support in international practice and in decisions of ICJ’.Footnote 98 For example, an obligation of non-recognition might be relatively uncontroversial in cases where recognition would support the breach of a peremptory norm, such as the prohibition of the use of force for territorial expansion.Footnote 99
As a consequence of the prohibition of territorial change from use of force,Footnote 100 states might attempt to disguise conquest as another mode of acquisition, such as cession by treaty.Footnote 101 Occupation during times of armed conflict is not the same as peaceful ‘occupation’ in the sense of the modes of acquisition. International law prohibits a change of title to territory through military occupation.Footnote 102 Examples of widespread non-recognition include states not recognising Iraq's annexation of Kuwait or Russia's annexation of Crimea.Footnote 103
In the case of Western Sahara, deploying troops at the time of the ICJ advisory opinion, followed by years of armed conflict and military occupation, has been used in an effort to make Moroccan sovereignty over the territory a fait accompli. However, military occupation does not transfer title to territory; if anything, it provides a reason for the non-recognition of territorial change.
In addition, while a state may not legally acquire territory by use of force, nor may it use force to frustrate an entity's right to self-determination.Footnote 104 Morocco uses its military to maintain control over most of Western Sahara.Footnote 105 Regardless of whether one terms this a conquest, it is an ongoing denial of the self-determination rights of the population of Western Sahara, which has contributed to a widespread refusal to recognise Moroccan sovereignty over the territory, notwithstanding the solitary (as of this writing) US recognition.
Morocco has been attempting to characterise what the Sahrawis and others have described as an invasion and military occupation as an issue of historical title and territorial integrity. The Friendly Relations Declaration states in its sections on decolonisation:Footnote 106
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.
Thus, the argument goes, if Western Sahara was already part of Morocco, then a claim of self-determination could not now be used to dismember Morocco.
Morocco is likely to be pursuing a strategy that multiple recognitions of its sovereignty over Western Sahara could reframe the diplomatic dialogue from being one about self-determination to one about pre-existing title and Moroccan territorial integrity. However, the ICJ was not convinced. Absent de jure authority, what is left is Morocco's de facto control since 1975. The question is whether recognition can, by some alchemy, transform de facto control into de jure authority. Koskenniemi explains the dilemma:Footnote 107
It seems reasonably clear that illegal occupation, however effective, cannot per se create title. But law cannot intermittently divorce itself from fact. Therefore, it is assumed that original illegality may be corrected in a process of consolidation, that is, the passing of time during which it becomes generally accepted to be best to let the sleeping dogs lie—quieta non sunt movere.
‘Prescription’ is a process by which ‘undisturbed continuous possession could under certain conditions produce a title for the possessor, if the possession has lasted for some length of time’.Footnote 108 A related concept, ‘historical consolidation’, uses ‘a great variety of evidences’ especially ‘the attitude of third States, because repute is always an important factor in any question concerning rights over land’.Footnote 109 Historical consolidation considers these factors of repute and acknowledgement by third states not only as evidence, but as being ‘themselves decisive ingredients in the process of creating title’.Footnote 110 For either historical consolidation or prescription, recognition could ease the way, one recognition at a time, for de facto control to transform into generally accepted as de jure sovereignty.Footnote 111
However, Koskenniemi explains that ‘[t]he very claim of self-determination is premised on the assumption that, however long, mere possession cannot suffice to justify sovereignty’.Footnote 112 Decades may pass in which effective occupation is still considered illegal and there is no international recognition of the factual change of territorial control. This had been the case with Western Sahara; whether recognition by the United States is an inflection point is a question of political prognostication, not legal analysis.
The current situation is perhaps best described as Morocco being an occupying power in Western Sahara.Footnote 113 Recognising Moroccan sovereignty over Western Sahara at this time would not only deny choice to a people with a right of self-determination, but would also ratify territorial change through military occupation.
Thomas Franck's words from 1976 are all the more relevant today:Footnote 114
The ‘settlement’ of the Saharan issue in favor of Morocco's claim of historic title and the denial of self-determination to the Sahrawi people radically departs from the norms of decolonization established and consistently applied by the United Nations since 1960.
5. Conclusion: Between the Power of Recognition and the Right of Self-Determination
In 2021, 45 years after Professor Franck wrote those words, former US Secretary of State James Baker called the recognition of Moroccan sovereignty over Western Sahara ‘an astounding retreat from the principles of international law and diplomacy that the United States has espoused and respected for many years’.Footnote 115 In contrast to President Trump's tweet finding US recognition ‘fitting’ as Morocco had recognised the US in 1777, Baker was concerned that the recognition was ‘abandoning the United States’ commitment to self-determination, the bedrock principle on which our country was founded and to which it should remain faithful’.Footnote 116
Morocco's claims that Western Sahara was part of a historic Moroccan polity is based on irredentist arguments that are in opposition to modern international practice. Rather than respecting existing borders at the time of its own independence and recognition, Morocco claims alleged borders from an earlier historical period. To validate such arguments would be profoundly destabilising and could be used to support revisionist claims.Footnote 117 The ICJ was not persuaded by Morocco's argument, by 14 to 2.Footnote 118
While the United States could make the argument that recognitions are largely political and that it is its own sovereign prerogative to recognise the territorial sovereignty of another state, this would ignore that it is in the US interest to uphold a functional and credible system of public international law. A decision to recognise a state or territorial change may be politically motivated, but it is not without legal implications.
As the norm of non-recognition is not easily enforced, a state can undertake a questionable recognition with little fear of sanction for that decision; the real cost is to the stability of the international system. In 1976 Tom Franck asked a question that unfortunately is of continuing relevance:Footnote 119
[W]e have been brought face to face, once again, with the question whether the United States, as a leading global power, has a greater interest in preserving and re-enforcing the integrity of the rules by which the game is supposed to be played or in winning subgames regardless is of how our actions affect the rules.
In addition to arguments based on law, morality and conceptions of justice, there are pragmatic reasons for supporting decolonisation and the right of self-determination, as well as for rejecting irredentist arguments to redefine state borders.
Emphasising the norm of non-recognition is not ignoring the so-called art of the deal. It is realising that there are longer-term interests in both stability and justice.
