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Washington D.C – Since outgoing US President, Donald Trump, decided to recognize Morocco’s sovereignty over Western Sahara, there has been a heated debate about its legal and political significance.
Central to this chorus of contention has been the question of whether Trump’s Western Sahara decision will outlive his departure from the White House.
Meanwhile, many have overlooked a key development that may have a lasting decisive effect on the conflict: The reaction of the United Nations Secretary General, Antonio Guterres, and the language his spokesperson used while addressing the issue.
To Polisario supporters’ dismay, the UN did not state that Trump’s decision does not prejudge the status of Western Sahara as a “Non-self-governing territory” or that the referendum is the way to end the conflict. Nor did it voice opposition to the move. In so doing, it has tacitly provided support to Morocco’s Autonomy Plan.
Following Trump’s decision, the UNSG’s spokesperson, Stephane Dujaric, said that the UN’s position remains unchanged. The UNSG, he stressed, is “convinced that a solution to the question of Western Sahara is possible, and that’s in accordance with relevant Security Council resolutions 2440 (2018) and 2548 (2020).”
When a reporter asked why Guterres does not call for the holding of a referendum on self-determination and whether he still supports it, Dujaric tellingly replied that the UNSG works to implement UNSC resolutions.
Dujaric made a similar statement on December 11 and following the UNSC meeting on December 21. He stressed, once again, that the UNSG still believes that a solution is possible through dialogue in accordance with UNSC resolutions.
Dujaric was categorical in his statements and answers to reporters. He did not mention any General Assembly resolution on the referendum on self-determination or the advisory opinion of the International Court of Justice, which Polisario supporters still use as the reference of the conflict. Nor did he mention the provisions of the 1991 settlement plan.
Dujaric clearly stated that UNSC resolutions remain the central framework for the political process and for reaching a political solution to the conflict. Yet the common denominator of UNSC resolutions 2440, 2464, 2494, and 2548 is their emphasis on the need for the parties to reach a just, mutually acceptable and compromise-based solution.
In addition, Algeria was for the first time included in Resolution 2440. Since then, every other UNSC resolution has cited Algeria as a main party to the conflict, as opposed to a mere observer or neighboring country.
In his latest report to the UNSC in September, Guterres made it clear that these are the parameters of the political process, calling on the parties to show genuine willingness to reach a compromise-based political solution in accordance with the above-cited resolutions.
The language used both in the UNSG’s report and in the statement of his spokesperson sounds the death knell for Polisario’s separatist dreams and for Algeria’s aspirations to prevent Morocco from completing its territorial integrity. While most observers have conveniently neglected or simply ignored this dimension of recent developments in the Sahara dossier, the language used in the UNSG’s report does carry legal consequences that are massively in Morocco’s favor.
Tacit support for new status quo
According to the principle of estoppel in customary international law, silence or absence of disapproval implies consent or approval. In this context, since the UN has not voiced its opposition to Trump’s decision nor said that it does not change the legal status of the Sahara as a “non-self-governing territory,” it tacitly accepted Moroccan sovereignty.
This principle applies when a party (in this case the UN) through its statements, acts or behavior, has led the other party (Morocco) to believe in the existence of a state of affairs concerning a conflict or a similar issue.
In other words, by not expressing its opposition to Trump’s decision nor referring to the referendum, the UN appeared to suggest that it is willing to explore how it fits with its political process. More importantly, by insisting that the UNSC resolutions remain the basis of any political solution to the Sahara conflict, the UN has led Morocco to believe that it no longer sees the referendum as a viable route out of the Western Sahara conflict.
In essence, because the UN did not openly oppose or contradict the US decision, it is now considered to be the new status quo on which Morocco can build its diplomacy.
From Morocco’s perspective, the UN’s response to recent developments means it does not consider the opening of consulates to be violations of the legal status of the Sahara as a “non-self-governing territory.”
For more than a year, the Polisario leadership has protested against the opening of consulates in the Sahara, issuing scathing press statements and sending vehement letters to the UNSG.
Despite this, the UN has not released a single official document to challenge the opening of consulates or agree — even if slightly — with the pro-Polisario camp’s interpretation of the southern provinces’ legal status. Again, not rejecting the growing support for Morocco’s sovereignty over the territory is tantamount to tacitly recognizing it.
Even more disparaging for Polisario and its international sponsors, the absence of any reference to the referendum in all UNSC resolutions since 2007 has already buried the “referendum on self-determination” option. Confirming this reading is, among other recent developments, the language the UNSG’s spokesperson used following Trump’s decision and the Security Council meeting on December 21.
For most UN diplomats and Sahara observers, the main takeaway from all UN resolutions and reports on the conflict in the past decade is that the referendum is off the table. As pointedly argued in Resolution 2548, the latest UNSC document on the conflict, a compromise-based solution remains the only conceivable way out of the current stalemate.
In this, the UN in the past years has consistently struck a fatal blow to Algeria and Polisario’s aspirations for a referendum.
What is more, the UN’s language of “compromise” and “pragmatism” will prevent it from going backwards. Put differently, by adopting this language, the UN has, again according to the principle of estoppel, created legitimate expectations in Morocco regarding its official position on the conflict.
This means the UN has entitled Morocco to have legitimate expectations, in the sense that the language in UN reports and resolutions has led to believe that “referendum on self-determination” is nowhere near the UN’s position on the conflict. And because of Morocco’s legitimate expectations in light of recent developments, the UN becomes bound to implement, or at least honor, the implications of its own language.
A conscious choice
If the UN secretariat firmly believed that the solution to the conflict could be reached by referendum, nothing prevented it from releasing a press release or other official document to clarify its position. Like the pro-Polisario camp, it could have unequivocally stated that the 1991 parameters of the conflict are still valid. That nothing has changed since 1991. And that the referendum remains the best way to end the dispute.
Similarly, the UNSC or Guterres could have condemned the opening of consulates in the southern provinces. They could have said, for example, that the consulates “violate” international law and defy the spirit of the ongoing political process. Had it done so, it would have sent a message to Morocco and to the countries which are considering opening consulates in the Sahara that their actions conflict with the legal status of the territory.
Yet it chose not to do so. Such acquiescence or consent to these developments in Western Sahara has led to a change in its relative position on the conflict and, consequently, to a change in the status of the Sahara in the UN jargon.
Consequently, the silence of the UN and the language it has adopted in its official documents following the opening of the consulates and Trump’s decision, as well as its passive behavior and absence of protests over Morocco’s claims to the territory, have the effect of changing the legal status of the conflict from the UN’s point of view.
The precedent of Jerusalem
The UN’s position on Western Sahara is the polar opposite of the one it adopted following Trump’s decision to move the American embassy in Israel from Tel Aviv to Jerusalem. At the time, the UNSG quickly expressed his opposition to the US unilateral action.
Guterres said: “I have always denounced any unilateral measure that would undermine the prospect of peace for the Israelis and the Palestinians. At this time of great anxiety, I want to make it clear: there is no alternative to the two-state solution. There is no plan B”.
In addition, eight members of the Security Council, including France and Great Britain, convened a meeting and expressed their opposition to Trump’s decision. A few days later, the General Assembly adopted a resolution which rejected it by 128 votes to 9 and 35 abstentions.
In expressing its opposition to Trump’s decision, the UN made it clear that it remains committed to the legal status of Jerusalem recognized by international law and UN resolutions. As a result, Trump’s decision had no legal weight. Guterres’ forceful opposition to the transfer of the US embassy to Jerusalem flies in the face of those who seek to create a parallel between Western Sahara and the Palestinian-Israeli conflict.
Has the UN expressed itself in such a way following Trump’s decision or the opening of consulates of eighteen countries in the Sahara? Far from it. Since Morocco adopted its “consulate diplomacy,” there has been no resolution from the General Assembly or the Security Council condemning support for Rabat’s position. Nor has there been any UN statement or decision expressing concern over the impact of the new consulates on the status of the territory and the political process.
Consequently, regardless of what Algeria and Polisario supporters may say, the legal framework that will govern the Western Sahara dispute in the future will no longer be the advisory opinion of the International Court of Justice, or the provisions of the 1991 settlement plan. Instead, as the UN has repeatedly argued in recent months, UNSC resolutions remain the only binding, pertinent framework for the political process.
Therefore, any attempt to resuscitate the principle of self-determination is doomed to fail because, quite simply, it denotes a stubborn, ill-advised attachment to a time-worn principle that has shown its limits.
Samir Bennis is the co-founder of Morocco World News. You can follow him on Twitter @SamirBennis.