On April 28, the UN Security Council (UNSC) voted on Resolution 2351, the annual extension of the UN Mission in Western Sahara (MINURSO), also calling for new negotiations. Though it has little new language, the resolution demonstrates a renewed commitment to a political solution. The past year has seen significant tension between Morocco and the UN following former UN Secretary-General Ban Ki-Moon’s statements during a contentious visit to Sahrawi refugee camps, which prompted Morocco to expel most of MINURSO’s international staff. The resulting diplomatic stalemate has highlighted the need to re-energize the search at the UN for a political settlement. Even if the UN process fails to bear fruit, legal proceedings at the European Union Court of Justice still offer hope for a new stage in negotiations.
Resolution 2351 also sought to respond to the security flareup between Morocco and the Polisario over Guerguerat, a remote outpost at the border with Mauritania. The military standoff drew Moroccan and Polisario forces dangerously close to each other within the buffer zone south of Guerguerat, which had only intermittent patrols and observers from MINURSO. The incident started in late August 2016, when Morocco began carrying out what it claimed was road maintenance work and anti-smuggling operations within the buffer zone, reportedly with the UN’s consent. The move prompted Polisario to deploy forces in the area four months later.
After new Secretary-General Antonio Guterres called on both forces to withdraw on February 25, 2017, Morocco pulled out the following day. Polisario, however, demanded preconditions—including implementation of the UN settlement plan for a self-determination referendum—before waiting until the last hour to withdraw (presumably at the behest of Algeria), thus showing force but avoiding the UN’s harsh condemnation. Whatever Rabat’s initial thinking or ulterior motives behind policing the southwestern border with Mauritania—or the Polisario’s belated but effective escalation—it may have instilled among some members a sense of urgency to jumpstart talks once again.
The report Guterres released on April 10 provided a frank assessment of the current stalemate and laid the ground for direct negotiations between Morocco and Polisario. In particular, paragraph 55 of the report references parties’ “significantly divergent interpretations” of MINURSO’s mandate, and paragraph 83 calls for neighboring Algeria and Mauritania to contribute to the negotiating process, to which they are currently only observers—even though Morocco has always claimed that Algeria was a direct party to the dispute. These statements have found supporting resonance in the UNSC.
The ensuing UNSC Resolution 2351 indeed offers sharpened language on the resumption of the political process based on the resolution’s three-times-reiterated formula of “a 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,” including a repeated call for neighboring states to fully cooperate with the Secretary-General’s Personal Envoy on Western Sahara. Guterres is expected to name former President of Germany and IMF Managing Director Horst Köhler, a noted African development expert, the Personal Envoy to facilitate negotiations between Morocco and Polisario. Köhler’s appointment may add political and diplomatic weight—and greater visibility—to the search for a negotiated solution on the longstanding dispute, as most of the envoys appointed since James Baker’s departure in 2004 have been mid-ranking diplomats.
Even with such an envoy, reconvening direct negotiations through shuttle diplomacy and proximity talks remains daunting. While Polisario desperately needs new talks to amplify its plea for a self-determination referendum, Morocco can pursue its offer of autonomy without negotiations and gradually eliminate the international dimension of the dispute. Yet Polisario is succeeding in challenging Rabat’s expectation that the international community accept the de facto inclusion of Western Sahara in Morocco’s national territory—based on its economic integration and extraction of natural resources—that Rabat had hoped would eventually sidestep the question of sovereignty. However, a ruling by the European Union (EU) Court of Justice in December 2016 has reaffirmed the status of Western Sahara as non-self-governing territory, which by definition excludes the legal acceptance of Moroccan sovereignty. This could be seen, albeit indirectly, as reinforcing Polisario’s claim to be the sole institution through which the Western Sahara people can consent to the exploitation of the territory’s natural resources.
The most recent ruling responded to Morocco’s appeal against the Court of Justice’s December 2015 judgement annulling an economic liberalization agreement (sometimes called the Fishery Agreement) signed by Morocco and the EU that also applied to parts of Western Sahara. In the appeal, the EU Court of Justice ruled inter alia that it was contrary to international law and incompatible with the principle of self-determination to include Western Sahara in any relations between the UN and Morocco (paragraph 107). Furthermore, the court argued that the people of Western Sahara, as a third party affected by the agreement, must give its consent before any such association agreement can be implemented (paragraph 106). However, the court stops short of saying that Polisario, as the representative of the people of Western Sahara, should be consulted in any EU relations with Morocco involving Western Sahara, though it cited the recommendation of the United Nations General Assembly Resolution 34/37 that Polisario be part of any search for a political solution on Western Sahara (paragraph 105). Referencing the prior ruling under appeal from December 2015, the court also determined that the EU was obligated to ensure that the production of goods exported to the EU from Western Sahara not be “carried out in a manner detrimental to the population of that territory and did not entail infringements of fundamental rights of the persons concerned” (paragraph 47).
By indirectly referring to Polisario as the representative of the Western Sahara people, the EU Court ruling goes further than did the UN legal opinion of January 29, 2002—to which it makes no reference—in questioning the legality of Morocco’s practice of granting foreign companies contracts to explore mineral resources in Western Sahara. The 2002 opinion stated that resource extraction in non-self-governing territories (such as Western Sahara) must be carried out for the benefit of the people of those territories and that disregarding the interests and wishes of the people of Western Sahara would violate applicable principles of international law.
Even if the UN process does not offer enough of a basis to move negotiations forward, the EU court ruling does. It is solid ground for Polisario and Morocco to go beyond their well-established positions at the negotiating table. For instance, Morocco could consider more options than just autonomy, such as shared sovereignty, which might involve joint management of the territory’s resources with the indigenous population and Polisario—possibly under regional or international supervision. Polisario could accept a transitional period that temporarily postpones a self-determination referendum. Negotiations could discuss possible mechanisms to ensure that Morocco has consulted the people of Western Sahara, including but not exclusively Polisario, when extracting and trading the territory’s natural resources. Neither Morocco nor Polisario may be ready for a sweeping compromise on sovereignty and self-determination, but such incremental, issue-based, and self-enforcing agreements may boost confidence in the process and establish stepping stones toward a comprehensive and lasting settlement.
Jacques Roussellier teaches international relations at American Military University and is co-editor of the book Perspectives on Western Sahara: Myths, Nationalism and Geopolitics (Rowman & Littlefield: New York, 2014).
