Moroccan Sahara: Opinion of Prof. Sehimi Mustapha

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Rabat, 12/30/2020 Le (Opinions) -Ref: François Dubuisson's platform and Ghislain Poissonnier - 12/28/2020 (10:45 am). -Tribune Madam Editor-in-Chief, Please publish my reaction in the aforementioned forum. It is justified, it seems to me, by the editorial requirements of your publication - open and pluralist - but also by the desire to provide a certain number of elements of information likely to better inform your readers.

On the status of the former Western Sahara to which the two authors refer, it should be remembered that it was Morocco which, in 1963, had this issue included in the list of non-self-governing territories of the United Nations. This was the extension of a recovery of its territorial integrity within the framework of a process of decolonization, Spain being the occupying power with a protectorate instituted in 1884. In April 1958, in the Cintra agreement, Madrid a ceded the Saharan city of Tarfaya; then, it was the negotiations on the recovery of Ifni and Western Sahara, well intertwined at that date. The decolonization committee - the 4th commission - adopted for the first time, on October 16, 1964, a draft resolution asking Spain, the administering power, to take measures in this direction. A position reiterated by the General Assembly of the United Nations (2072 -XX - December 28, 1965) urging the government of Madrid to immediately take the necessary measures for the liberation from colonial domination "of these two territories. They will be dissociated by the General Assembly (Resolution of December 20, 1966), which led after two years of negotiations to the transfer to Morocco of sovereignty over Ifni (Treaty of Fez, January 4, 1969).

There remained the organization of a referendum among "indigenous inhabitants" extended to "the return of exiles to the territory". The three Maghreb countries (Morocco, Algeria, Mauritania) were divided, despite the Nouadhibou summit (September 14, 1970). Algeria then presented itself as an "interested party" for considerations in particular regional geopolitics, the territory being contiguous to its borders. Mauritania, too, by relying on geographical, but also cultural and historical links. Spain took advantage of these divisions to broaden the powers of the "Jemaa", set up on May 11, 1967, which then had only a marginal advisory role. Madrid accelerated the deployment of its policy and then tried to organize a referendum, a prelude to the switch from "autonomy" to formal independence, announced for the first half of 1975.

Morocco is reacting vigorously. He thus denounces any unilateral decolonization that does not take into account the UN resolutions or the participation of the countries concerned. To obtain a binding stay for Madrid, Morocco then seized the United Nations General Assembly to ask the International Court of Justice (ICJ) - whose seat is in The Hague - for an advisory opinion on the question of Western Sahara. This will be done with Resolution 3292 of December 13, 1974. The Court delivered its opinion on October 16. It concludes that the territory was not terra nullius while noting "the existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and certain tribes living in the territory of Western Sahara" (& 162, advisory opinion). On the strength of this advice, King Hassan II announced the same day the organization of a historic march of 350,000 volunteers in the direction of the Sahara - the "Green March", on November 6. The Madrid agreements, dated November 14, seal the process of withdrawal from Spain on February 28, 1976.

Another argument is also put forward which does not stand up to scrutiny. Reference is thus made to European agreements with Morocco (fishing, agriculture, air transport, etc.) economic and commercial which, in their eyes, translate into - "official recognition of Moroccan sovereignty" over the whole of its territory including its southern Saharan provinces.

The problem posed here is the following: that of the principle of permanent sovereignty over natural resources. On this reference, it is thus alleged that the exploitation of the resources of the Sahara can only be done with the agreement of the Polisario, readily presented as the sole legitimate representative of the "people of Western Sahara". In some judgments, the European Court of Justice (CJEU) has taken up this assertion in its decisions. Legally unfounded, they are however marred by a manifest excess of power: this court expands its jurisdiction over a dispute that does not fall within its jurisdiction; it decides in fact on the legal status of a foreign territory. In addition, it considers that the holder of permanent sovereignty over natural resources would be the Saharawi “people”. From where it concludes that any agreement between Morocco and the European Union is inapplicable to the Sahara if it is not expressly accompanied by the consent of the population of this territory, whose legitimate representative would be only the Polisario. Under international law, the EU concludes agreements with states, not with a movement or entity that does not have such status. The Polisario is not recognized by 164 UN member states; he is not

t not by the Organization of the Islamic Conference (OIC) nor by the Arab League nor by regional organizations. Only the African Union granted it member status, in 1984, under special conditions ... In the AU, it is not recognized by 38 member states out of a total of 54. In this same line, it is worth remembering that in 2002.

Enough to activate and consolidate a process ultimately leading to a decoupled normalization in two areas following the impact of President Trump's decision of December 10: the finalization of a political, negotiated and realistic solution to the Sahara issue. ; and in the same dynamic, one might say, with the State of Israel. A revitalization of peace, stability and security in the Maghreb, in the region and in the Middle East.

In 2002, the United Nations published a legal opinion which legitimizes and therefore validates contracts relating to resources in the Moroccan Sahara between local companies in these provinces, as well as States or foreign companies. A position which was assessed on the basis of an analysis and an assessment of the primacy of the interests of the populations and their consent.

 At the institutional level, advances have been capitalized over the past two decades: the Moroccan Initiative for Advanced Autonomy presented to the Security Council on April 11, 2007, the new Constitution of July 29, 2011, and finally the new development model presented by the King in November 2015 (100 billion dirhams of investment, achieved today almost at the level of 70%).

As for the referendum some still cling to, what are we talking about? It has been deemed "impracticable" and unrealistic "by the World Organization itself! I refer in this regard to what Peter Van Walsun, Personal Envoy of the UN Secretary-General, said at a meeting in Closed session of the Security Council on April 21, 2008: "The independence of Western Sahara is not a realistic proposition. I tried to reiterate this conclusion to my interlocutors in Tindouf and Algiers: they did not dispute my analysis ... "Self-determination? Morocco is not hostile to it but with forms of consultation. In addition, today, this referendum story is nothing more than an old chimera.A process was launched by MINURSO on this subject in 1994. It took into account the Spanish census of 1974 (74,000 people) but it did not could be finalized following disagreements on the identification of other populations, of Sahrawi origin, refugees in Morocco.

It would be an operation even more futile today with the difficulty of counting the "refugees" in the Tindouf camps. Despite constant appeals from the Security Council for years, what is the situation? The UNHCR was not authorized to carry out this identification in situ, depriving these populations in passing of the diplomatic protection to which they are entitled under international instruments (Geneva Convention of July 28, 1951, additional protocol of 1967). However, Algeria adhered to it on February 7, 1963 (Decree n ° 1963-264) ...

Finally, what about the criticisms of the positions of the European Union and President Trump on the Sahara issue. So there are no less than 27 EU countries that are "in error", persistent and obstinate in the face of the wall! Yet the leaders of these same countries have experienced multiple partisan alternations for decades but without major changes on this issue - "continuity", despite everything ...

As for the tenant leaving the White House, in the name of what to challenge him the exercise of his full attributions with the executive order of December 10 current on the "official recognition of the Moroccan sovereignty, full and entire, on the Sahara". An act of sovereignty! And besides, the same American administration reiterated again, during the closed meeting of the Security Council, just a few days ago, on December 21, its support for the process of negotiated and realistic political settlement, on a basis of compromise, as validated by the Security Council resolution on October 30 (R.2548) and all those adopted elsewhere since 2007.

This is the field of diplomacy. Is Donald Trump's "aggressive"? That of the European Union, "more civilized" without much difference? In any case, the question of the Moroccan Sahara is recording, with President Trump, a great historic advance. From now on, its terms of reference are of a different nature. And from another dimension. What consolidates a process leading in the long term to a normalization finalizing a negotiated and realistic political solution of the Sahara question but also with the State of Israel. A revitalization of peace and security in the region, in the Maghreb and in Near Orient.

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