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World of Walls

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Said Saddiki

5. The Wall of Western Sahara1

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  • 1 This chapter is drawn, with permission from the publisher, from: “The Sahara Wall: Status and Pros (...)

1All military walls in history were originally built with a protective function to keep out invaders. China’s Great Wall, the most famous and the longest manmade structure in the world, was built for defensive and protective purposes, to safeguard and unify the Chinese territory and empire. Also, in ancient civilizations, the high walls surrounding old cities were constructed as fortifications to defend the people from potential aggressors. However, modern international walls and fences are differentiated from each other according to their specific contexts and purposes. Some border walls are strictly defensive and military fortifications; others are considered to demarcate borders between two or more neighboring countries; others act as buffer lines between warring parties; and yet others have different roles and functions.

  • 2 I use in this chapter the terms “Sahara” and “Western Sahara” interchangeably.

2The Western Sahara Wall (also known as Sand Wall, defensive wall and Berm), which was built by Morocco in the Western Sahara,2 is one of these walls worth studying as a specific case. The Sand Wall was built in a specific international and regional context marked by a furious conflict between the two blocs during the Cold War over the control of some geo-strategic areas, including the Maghreb region.

  • 3 William Zartman, Ripe for Resolution: Conflict and Intervention in Africa. New York: Oxford Univer (...)
  • 4 POLISARIO is an acronym for the Popular Front for the Liberation of Saguia el Hamra and Rio de Oro (...)

3Researchers interested in the Western Sahara issue consider the battle between Algeria and Morocco over its fate as a piece of heritage of the Cold War, which had intensified the struggle for regional hegemony. As noted by William Zartman, “by the end of 1984, the Western Saharan conflict had lost its specific focus on a piece of land and had become a clash of alliance in the Maghreb”.3 In this context, characterized by the unconditional support provided by some socialist bloc countries (mainly Algeria, Libya and Cuba) to POLISARIO,4 Morocco had no choice but to build a defensive wall in order to impose its conditions on the battlefield.

4The Advisory Opinion rendered on 6 October 1975 by the International Court of Justice remains one of the key international legal bases to which Morocco refers in its policy towards the Western Sahara. This Advisory Opinion acknowledged that there were legal ties of allegiance between the Western Sahara territory and the Kingdom of Morocco at the time of colonization by Spain. The attachment of the population to the central power (Sultans, Princes, Kalifas) during Islamic history was based especially on religious and temporal ties of the allegiance (beyâa), which was considered as a contract between the population and the governor.

5It is noteworthy that the notion of sovereignty that had been practiced in the Arab and Muslim World differed from “Westphalian sovereignty” that emerged in Europe following the end of the Thirty Years’ War in 1648. Even if the system of Westphalian sovereignty — based on territoriality — has dominated international relations from that time forward, it could not be applied retrospectively to earlier nations that had known a specific government and administration adapted to their cultural, political and social environment.

6Arguably, the construction of the Western Sahara Wall is absolutely the most important military decision made by Morocco throughout the history of this issue because of its significant subsequent results not only at a military level but also because it has many considerable political and diplomatic consequences.

7Moroccan Armed Forces began the construction of the Berm in 1981 through a series of steps. The project ended in April 1987 after more than 2,200 kilometers had been built. The berm is made up of six walls which were successively built as following periods:

  • 1st wall (Aug 1980–Jun 1982): 500 kilometers
  • 2nd wall (Dec 1983–Jan 1984): 300 kilometers
  • 3rd wall (Apr 1984–May 1984): 320 kilometers
  • 4th wall (Dec 1984–Jan 1985): 380 kilometers
  • 5th wall (May–Sep 1985): 670 kilometers
  • 6th wall (Feb–Apr 1987): 550 kilometers
  • 5 Khadija Mohsen-Finan, “Murs de défense au Sahara occidental”, Études, Vol. 400, No. 2004 (January (...)

8The berm is supported at regular intervals by observation points, support points, artillery support, underground shelters of soldiers and radar and electronic sensors systems to detect adversary vehicles. Reserve forces have been positioned behind the wall, ready to retaliate if attacked.5 By the time the wall was completely erected, the battle in the Western Sahara had completely changed in favor of Moroccan military strategy.

9Since the present and future of the Sahara Wall is tied closely to those of Western Sahara itself, before approaching the status and prospects of the Sahara Berm it is important to understand its historical origins.

A Glance at the Western Sahara Issue

10This section aims to highlight both the historical ties between Morocco and the Western Sahara region and the progress of this issue in the framework of the United Nations.

The Western Sahara Region’s Historical Ties to Morocco

11Throughout history, the Sahara has been the strategic depth of the Moroccan State. The rootedness of the Western Sahara in Morocco results from uninterrupted continuity of a ruling dynasty, many of whom originated from the Sahara. History books overflow with indications of the ties between the Sahrawi tribes and the Moroccan state. These ties reflected the concept of sovereignty as it was practiced during the era of Islamic rule and are consistent with the pattern of nomadic life in the Sahara, which is characterized by permanent mobility and travel, not conducive to the establishment of a fixed administration. Thus, one could not adopt the concept of territorial sovereignty — as developed in Europe after the Treaty of Westphalia in 1648 — as a standard by which to prove or deny legal ties between Western Sahara and Morocco, since these had been developed in a different political, economic and social context.

12The history of the Sahara confirms that Moroccan sultans and kings have exercised various forms of authority associated with internal and external sovereignty over this region. With regard to internal sovereignty, many historical documents show that the sultan has always practiced functions related to legislative, executive and spiritual authorities.

  • 6 ICJ Advisory Opinion of October 16th, 1975, on the Western Sahara, Individual Opinion of Fouad Amm (...)

13Legislative activities, exercised by the sultan, were not limited only to sultani dahirs (decrees), but extended to economic activity through the control of trade and production, in particular with regard to fishing — the monopoly of which was generally reserved for the sultan’s subjects, except in the case of special concessions for foreigners. They also extended administration of the ports in order to open and close them to foreign trade according to requirements of national policy. The sultan’s legislative authority also related to raw materials and fiscal matters through the assessment, imposition and collection of taxes and duties.6

  • 7 Ibid., p. 85/93.
  • 8 ibid.
  • 9 Ibid., p. 83/93

14Moroccan sultans practiced executive authority in the Western Sahara region through dahirs, as they did in the legislative field. That was the means by which they appointed and dismissed the caids to whom they entrusted responsibility for the government of a region, on a coast or across a group of tribes. The caids are, according to the etymological meaning of the term, military commanders who also have administrative functions. The title of caid did not tend to be strictly an honorary one, as has been alleged.7 It is a practice in a number of countries, in the absence of a centralized authority, to choose persons to govern who have the qualifications which enable them to make their authority felt and to carry out necessary tasks.8 Morocco submitted five of those dahirs that showed the administrative and political linkage of the regions of Western Sahara to Morocco to the ICJ in 1975. It is the dahirs in documents 4, 5 and 8 which appoint caids over the Sahara tribes of the Tidrareen and Oulad Tidrareen, whose nomadic migration routes extend over the whole of Western Sahara, according to Mauritania’s maps numbers 2 and 3 and go beyond Cabo Bojador; the dahir in document 4 also appoints the caid with authority over the Saharan Tekna, whose nomadic migration route extends to the northern part of the Sahara, or the Sakiet El Hamra, according to map number 3.9

  • 10 Ibid., pp. 86/78–94/86.

15Many European historians have agreed on the continuous and persistent link between the Western Sahara region and Morocco. Fouad Ammoun referred to five of those historians a Frenchman, Vernet; and four Spaniards, Domenech Lafuente, Seco de Lucena, Huici and Romeu who inspired great confidence with regard to the facts supporting the Moroccan case.10

  • 11 For further details about these conventions see the ICJ Advisory Opinion of 16 October 1975 on the (...)
  • 12 Ibid., p. 124, p. 41.

16The documents relied upon by Morocco show international recognition of Moroccan territorial sovereignty over the Western Sahara region. Those documents concern bilateral conventions and treaties which Morocco held with some states, notably the treaty with Spain of 1767, and treaties of 1836, 1856 and 1861 with the United States, Great Britain and Spain, respectively. Provisions of these deal with the rescue and safety of mariners shipwrecked on the Coast of Wad Noun or in its vicinity.11 One of these significant international accords is the Franco-German exchange of letters of 1911 — appended to the Agreement between France and Germany of 4 November 1911 — which expressed the understanding of the parties that “Morocco comprises all that part of northern Africa which is situated between Algeria, French West Africa, and the Spanish colony of Rio de Oro”.12 Morocco has presented this document as clear recognition by those powers of Moroccan sovereignty over the Sakiet El Hamra as an integral part of its territory.

17Although sovereignty in Islamic history had taken different dimensions, it can be generally summarized as “spiritual and temporal authority”. Spiritual and religious ties had been its most important aspects. Allegiance (beyâa) based on religious elements was expressed by tribes and inhabitants of the Sahara region to the Moroccan central authority. Religious and spiritual dimensions gave legal force to the allegiance, and the population’s belief in its obligation guaranteed the people’s respect of its requirements even if the state could not extend its material authority to them. This fact explains why an important number of provinces remained subordinate to the central Islamic state for a long time despite the absence of any tangible administrative or military aspect of sovereignty that subjugated them.

18Since independence in 1956, Morocco, based on the continued subordination of the Western Sahara region to its territory, has spared no effort in completing its territorial integrity, which was torn apart by progressive multinational colonization from 1884 when Spanish colonization began. Before 1956, the Moroccan people used various means, including armed struggle, for liberation from colonialism. However, the formal declaration of independence in that year made Morocco fall back slowly to rely on diplomatic and political means, such as direct negotiations and UN instruments, to complete its territorial integrity. Due to its exposure to multinational colonization and the competing interests of colonial powers, Morocco was unable to recover all of its territory at once in 1956. This did not prevent the country from declaring independence and gaining international recognition as provided in international law.

  • 13 The Declaration on the Granting of Independence to Colonial Countries and Peoples, U. N. General A (...)

19The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples stipulated in paragraph 3 that “inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence”.13 Nevertheless, this did not mean that Morocco had given up the territories that remained under occupation in the north and south. In fact, the declaration of Morocco’s independence in 1956 did not constitute a break with the colonial past because of the continued presence of Spanish colonies in important parts of Moroccan territory.

20Even though Morocco was able to retrieve some parts of its national territory — such as Tarfaya and the Sidi Ifni regions, which it regained respectively in 1958 and 1969 by a bilateral agreement with Spain — the Sakia El Hamra and Río de Oro regions, or what is known internationally as the “Western Sahara”, have been long considered as a major obstacle to the normalization of Moroccan-Spanish relations. The Spanish government insists on individual initiatives to settle the fate of the province and to withdraw from it. This has become the main obstacle to achieving the Maghreb integration.

21In addition to Spain, Algeria tried with all its strength, during this period, to prevent Morocco from achieving complete independence and reintegrating the Western Sahara region into Moroccan territory. Algeria based its position on the principle of uti possidetis (i. e. the principle of inviolability of borders inherited from colonization), ignoring the fact that the Western Sahara has never been separated from Moroccan territory in the past. The principle of uti possidetis dates back to Roman times and takes its name from the Latin phrase “uti possidetis, ita possideatis”, which means “as you possess, so may you possess”. The modern application of the uti possidetis doctrine emerged after the decolonization of Latin America in the early nineteenth century. This doctrine was summarized in the 1922 arbitral award by the Swiss Federal Council that settled the territorial claim between Colombia and Venezuela. It described uti possidetis as “the basis of South American public law:

  • 14 James Brown Scott, “The Swiss Decision in the Boundary Dispute between Colombia and Venezuela”, Am (...)

[…] The principle laid down the rule that the boundaries of the newly established republics would be the frontiers of the Spanish provinces which they were succeeding. This general principle offered the advantage of establishing the general rule that in law no territory of Old Spanish America was without an owner […]. The principle also had the advantage […] of doing away with boundary disputes between the new states.14

22In summary, the uti possidetis principle is a legal principle that provides that successor states accept international boundaries set by predecessor regimes.

  • 15 George Joffe, “The International Court of Justice and the Western Sahara Dispute”, in War and Refu (...)
  • 16 Ibid.

23At the beginning of twentieth century, Latin America abandoned the uti possidetis principle because “it was found to be too restrictive on States there in rectifying obvious errors and injustices” and “there was often confusion over the location of provinces and other subdivisions of colonial control and thus over which successor State had the right to the territories in question”. Furthermore, “the principle could not be applied to adjacent territories which had been governed under different colonial regimes”.15 This has always been the attitude of the Moroccan government — amongst others — towards the principle, particularly if it involved the creation of states that, before colonization, had no status in international law.16

  • 17 Ibid.
  • 18 Ibid., p. 18.

24In the African context, the principle of uti possidetis has been adopted implicitly. For example, the resolution adopted by the Summit of the Organization of African Unity (OAU) in July 1964 in Cairo stipulated that all member states “pledge themselves to respect the borders existing on their achievement of national independence”. This statement does not mean in any way that the principle of uti possidetis can be applied in all cases since it refers only to “national independence” excluding the independence of a part of national territory. Algeria is one of the African countries that has hugely benefited from the implementation of this principle and it has strongly defended it because “it is extremely difficult to define a pre-colonial Algerian State with the same territorial extent as is the case with modern Algeria”.17 It was very difficult in the 1960s to settle Morocco-Algerian disputes over some contiguous regions without resorting to the principle of uti possidetis. Although the application of this principle was not equitable for Morocco, it had demonstrated a great will to make significant territorial concessions in order to create a stable Maghreb. In the case of the Western Sahara issue, although Algeria was anxious to apply the principle in defining an entity different from Morocco in the region, Morocco had been most unwilling to do so again, if for no other reason than the simple fact that the colonial regimes involved were very different and reflected different colonial approaches rather than any inherent differences in the nature of the contiguous territories involved.18

Fig. 5.1 Location of the Western Sahara. Map by Rei-artur, CC BY-SA 3.0.19

The UN and the Western Sahara Issue

25Before Spanish withdrawal from the Western Sahara region in 1975, the UN had adopted some resolutions concerning the region. Resolution 2072 (XX), adopted by the General Assembly on 16 December 1965, called upon Spain to end its colonization of Sidi Ifni and the Sahara; and Resolution 2229 (XXI), adopted by the General Assembly on 20 December 1966, recommended negotiations for the recovery of Sidi Ifni and called upon Spain to hold a referendum on the issue of the Western Sahara.

26The Advisory Opinion given by the International Court of Justice on 16 October 1975 was a turning point in the modern history of the Western Sahara region. The ICJ concluded that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain was not a territory belonging to no one (terra nullius) and that legal ties existed between this territory and both the Kingdom of Morocco and the Mauritanian entity. Despite disagreement about the interpretation of the ICJ Advisory Opinion, it constituted the international legal framework for all Moroccan initiatives that seek to find a solution to the Western Sahara issue because it confirmed the existence of the political, legal and spiritual attachment of the inhabitants of the Western Sahara, on the basis of the ties of allegiance (beyâa) shown throughout history.

  • 20 Said Saddiki, “The International Reference of the Moroccan Autonomy Project for the Sahara Region” (...)

27Although, the United Nations had played a very modest role in the question of the Western Sahara during the Cold War era, immediately after the end of that period the UN began to play a more active role. This was reflected in some important decisions taken by the Security Council concerning Western Sahara and other international issues. This new interaction can be seen in the action of the UN to give special importance to the Western Sahara issue by presenting a set of proposals to the parties concerned, as well as by the creation of the United Nations Mission for the Referendum in Western Sahara, commonly known as MINURSO on 29 April 1991. This new role for the UN was further reinforced by the direct sponsorship of negotiations between Morocco and the POLISARIO.20

  • 21 Ibid., p. 18.

28Within the framework of the revival of the role of the UN in the Western Sahara issue, the Security Council unanimously adopted Resolution 690 of 29 April 1991. With this, it showed approval for the report by the Secretary-General relative to the organization of a referendum of self-determination in the Western Sahara and formally approved the creation of the MINURSO forces.21

29The UN noticed the difficulty of putting the 1991 settlement plan into practice, and the personal envoy of the Secretary-General, James Baker, proposed another project entitled “Framework agreement on the Status of Western Sahara”, known as “Baker Plan I” at the beginning of 2001. This “Framework Agreement” was characterized by its political nature, concluding that the dispute over the Western Sahara was primarily a political issue. Although it was immediately accepted by the Moroccan government as “a framework for negotiations” because it offered the population of the Western Sahara autonomy within the Moroccan state, POLISARIO rejected it on the grounds that it did not include the possibility of secession of the territory; therefore, it has never been presented formally to the Security Council.

  • 22 Ibid.

30Convinced of the difficulty of applying the first plan, the former UN envoy proposed a second initiative, called “Baker Plan II”, in 2003. The Security Council approved this plan in its Resolution 1495 of March 2003, which bore the title “Peace Plan for Self-Determination of the People of Western Sahara”. This plan, which suffered from many practical difficulties,22 was considered — at least by the Moroccan government — as a step backward since it once again proposed the referendum option as a solution to the Western Sahara issue. Today, the “Baker Plan II” seems largely dead; since early 2005 the UN Secretary-General has not referred to the plan in his reports concerning the situation in Western Sahara.

  • 23 Ibid.

31This is precisely why Morocco should take the initiative to present a daring project that abides by the different resolutions of the United Nations, a project called “The Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region” (henceforth, Moroccan Autonomy Initiative).23 The Moroccan Initiative has been welcomed unanimously by the United Nations Security Council in its Resolution 1754 of 30 April 2007. The UN expressly applauded the efforts deployed by Morocco “to move the process forward towards resolution”, and describes these efforts as being “serious and credible”. This praise of the Moroccan Initiative has since then been reiterated, including in subsequent Resolutions adopted by the Security Council on the situation concerning Western Sahara; namely, Resolution 1813 of 30 April 2008, Resolution 1871 of 30 April 2009, resolution 1920 of 30 April 2010, and Resolution 1979 of 27 April 2011.

Status of the Western Sahara Wall

32Although the Western Sahara Wall was initially built for defensive reasons, since the beginning of the 1990s, its status has undergone an important change with the creation of the MINURSO. Military agreements signed by the two sides of the conflict have defined the status of the Berm and surrounding areas.

The Original Function: The Western Sahara Wall as a Defensive Military Instrument

  • 24 Alexandra Novosseloff et Frank Neisse, “La Construction des Murs, ou la Mondialisation à Rebours”, (...)
  • 25 Zakaria Abouddahab, “Le Mur de Défense du Sahara Occidental à L’épreuve du Droit International et (...)
  • 26 Derek Harvey, “The Reagan Doctrine, Morocco, and the Conflict in the Western Sahara: an Appraisal (...)

33Like other military walls in various parts of the world that were erected in times of conflict and symbolize the transition from an offensive strategy to a defensive one (by which the state or empire protects its population and sustains a fait accompli),24 the Western Sahara Wall reflects a shift in the Moroccan military doctrine at the beginning of the 1980s. Morocco confirmed that the construction of the sand wall was purely for defensive purposes. Protection of civilian populations and the vital areas in Western Sahara against attacks by the POLISARIO forces was the top priority of this defensive policy.25 Moreover, such an incremental strategy allowed Morocco to gain and secure more and more territory — a practice recommended by counter-insurgency theorists.26

  • 27 Cited by Claude Moniquet, “The POLISARIO Front: Credible Negotiations Partner or After-Effect of t (...)
  • 28 Zakaria Abouddahab, “Le Mur de Défense du Sahara Occidental à L’épreuve du Droit International et (...)

34At the time when the wall was finished, POLISARIO leaders — according to Mustapha Bouh, a former member of the POLISARIO’s political bureau — had to accept that the wall imposed another kind of war on them. The Moroccans had adapted their strategy and, in turn, POLISARIO had to follow suit.27 Indeed, the construction of the Western Sahara Wall extensively affected the margin of maneuver of POLISARIO and disrupted its military capabilities, whereas it has enhanced the Moroccan military strategy on the ground and strengthened its negotiating position. This explains the significant decrease in the number of attacks carried out by POLISARIO against Moroccan forces. It was a turning point in the course of the conflict that led eventually to a cease-fire between the two sides. This situation, which disrupted the movement of POLISARIO troops, prompted POLISARIO leaders to abandon military options and enter into direct negotiations with Morocco. Arguably, the sand wall has played a double role: protection and stabilization.28

  • 29 Claude Moniquet, “The POLISARIO Front: Credible Negotiations Partner or After-Effect of the Cold W (...)

35One of the main strategic reasons for Morocco to build a sand wall in the Western Sahara, even though it leaves an important part of the territory temporarily out of its direct control in the south and east of the Berm, is to avoid being confronted directly by the Algerian army and to avoid chasing POLISARIO guerillas into Algerian territory or violating Mauritanian sovereignty. By this military doctrine, the Moroccan army has voluntarily limited its right of pursuit in the event of POLISARIO attacks29 and it has demarcated the battlefield. Furthermore, the wall is built in the mostly uninhabited territory in the Western Sahara. The defensive purpose of the Western Sahara Wall is clearly recognized in the Secretary-General’s Report S/10/1998 of 20 October 1998 (paragraph 8 of section B, entitled “military aspects”), which stated “with its construction work for logistical and accommodation purposes nearly completed at Dakhla, the engineering support unit from Pakistan is now focusing its efforts on the establishment of the forward logistical base at Awsard and on the refurbishment of sub-sector commands east of the defensive sand wall (Berm)”. Moreover, there is no report of the Secretary-General condemning the construction of the wall. In addition, no resolution of the Security Council and UN General Assembly mentions or describes the wall as “illegal”.

Current Function: The Berm as a Landmark of the Ceasefire Monitoring Agreement

  • 30 See the Military Agreement No. 1 on the MINURSO website as it appeared on 2 January 2010, when it (...)

36The current status of the Berm is defined by Military Agreement No. 1 (henceforth referred to as MA #1), which is considered as the basic legal instrument for the UN monitoring of the cease-fire in Western Sahara. MINURSO developed and signed MA #130 in December 1997 with the Royal Moroccan Army (RMA) and, in January 1998, with the Frente POLISARIO Military Forces (FPMF). One of the most important clauses of MA #1 emphasizes that it details only activities of the military and has no provisions for civilian movements.

  • 31 Ibid.

37MA #1 divides the territory of Western Sahara into five areas. The Berm is considered to be a landmark of this demarcation. Each of the five parts has specific restrictions for the two parties’military activities.31

  • One 5-kilometer wide Buffer Strip to the south and east sides of the Berm: MA #1 prohibits the entry of RMA and FPMF personnel and equipment into this area by ground or air and the firing of weapons in or over the area. It stresses that it is prohibited at all times and any infraction counts as a violation of the cease-fire.
  • Two 30-kilometer wide Restricted Areas along the Berm: The Buffer Strip is included in the Restricted Area on the POLISARIO Front side, and the Berm is included in the Restricted Area on the RMA side. MA #1 forbids the firing of weapons and/or conducting any military training exercises, with the exception of physical training activities of unarmed personnel. Also, this agreement bans any tactical reinforcements, any redeployment or movement of troops, headquarters/units, stores, equipment, ammunition, weapons, any entry of military aircraft and any improvements of defense infrastructures. However, it notes that some exceptions apply and some activities are allowed following prior notification to or approval by MINURSO.
  • Two Areas with Limited Restrictions: These are two remaining vast stretches of land of the Western Sahara on both sides, respectively. In these areas, all normal military activities can be carried out with the exception of the reinforcement of existing minefields, the laying of mines, the concentration of forces and the construction of new headquarters, barracks and ammunition storage facilities. MA #1 states also that MINURSO needs to be informed if the parties intend to conduct military exercises, including the firing of weapons of a calibre above 9 mm.

Fig. 5.2 Map made by the MINURSO based on the Military Agreement No. 1. This map drawn on 4 May 2007 shows the Operational Area of MINURSO including location of refugee camps in Tindouf.32

38In addition to MA #1, MINURSO signed two other military agreements with the two parties separately. Military Agreement No. 2 was signed in April 1999 between the FPMF and the MINURSO with the aim of reducing the danger that represents residual mines and Unexploded ordnance (UXOs). However, the terms of this agreement do not apply to the mines and UXOs in the Buffer Strip. On the other hand, Military Agreement No. 3 was conceived within the framework of strengthening the cooperation between the RAM and the MINURSO. With humanitarian and environmental significance, it aims to reduce both the danger of residual mines and unexploded engines. It is further understood that this agreement aims to reduce the danger but not to perform a mine-cleaning operation or a large-scale research endeavor.

39It is worth mentioning that the sand wall does not constitute an international border, as was noted in paragraph 56 of the Peace Plan (contained in the Report of the Secretary-General No S/2003/565 on 23 May 2003): “The Moroccan troops remaining in the Territory will […] consist only of troops deployed in static or defensive positions along the sand wall constructed by Morocco close to the eastern and southern frontier of the Territory”. Also, the report of the Secretary-General No S/1995/779 on 8 September 1995 distinguished between the Berm and the international border of Western Sahara, stating, in paragraph 25, that “as noted in my last report (S/1995/404), during consultations held by the former Special Representative in 1991, the POLISARIO Front had objected to the suggestion that its troops be confined outside the Territory, while Morocco had refused to agree that the troops be confined in the area between the sand wall (Berm) and the international border of Western Sahara”.

New Functions of the Western Sahara Wall

40Today, the role of the Western Sahara Wall has multiplied as a result of new phenomena in the region, especially the increase in operations made by some military groups and the growth of irregular sub-Saharan migrants crossing the Sahel and Sahara region.

41Geographical features of Great Sahara, especially its immense open space and porous borders, have made the region a safe haven for some Islamic military groups. In the last decade, they have used these to threaten countries of the region. Many attacks and kidnappings have been carried out by these groups, especially in Mauritania, South Algeria and northern areas of Niger and Mali. So, the Western Sahara Wall can be practically considered as an effectively impregnable obstacle to the movements of Islamic military groups located and acting in both the Sahara and Sahel region. This fact explains why Western Sahara remains relatively free from attacks compared with other Saharan regions.

  • 33 For more information about the routes of irregular sub-Saharan immigration see Hein de Haas, “Irre (...)

42At the same time, the Western Sahara Wall plays an important role in preventing or at least reducing the movement of irregular immigrants. This is why sub-Saharan migrants generally prefer to enter Morocco at the border east of Oujda from Algeria after they have crossed the Sahara overland, usually through Agadez in Niger and Tamanrasset in Algeria,33 because they are aware of the difficulties of crossing into north Morocco from the south because of the Sahara Wall. This explains why cases of sub-Saharan irregular immigration mentioned periodically in reports of the UN Secretary-General on “the situation in Western Sahara” are infrequent and are limited to the south and east sides of the Berm.

The Prospects of the Western Sahara Wall

43Today, the Western Sahara Wall finds itself at a crossroads because of significant developments in the Western Sahara issue, especially after the Moroccan Autonomy Initiative in 2007. This has been the subject of negotiations between the Moroccan government and POLISARIO, which started in Manhasset (U.S.) in June 2007 and have continued intermittently up to the present time. The future of the Sahara Wall depends closely on the fate of the Western Sahara issue itself. There are three potential scenarios for the future of the Western Sahara Wall, in accordance with the positions held by the conflicting parties: separation of the Western Sahara region from Morocco, success of the Moroccan Autonomy Initiative or continuation of the existing status quo.

Separation of the Western Sahara Region: An Unrealistic Solution

44The dissident thesis, adopted by Algeria and POLISARIO, focuses on the separation of the Western Sahara region and the creation of an independent state as the ultimate solution to the conflict.

  • 34 Said Saddiki, “A Reading of the Constitution ‘Sahrawi Arab Democratic Republic’”, Southern Morocco (...)

45The notion of “Sahrawi people” or “people of Western Sahara” has been the subject of a controversial debate which accompanied and continues to accompany the different phases of the Western Sahara issue. In fact, the populations of Western Sahara have never regarded themselves as an independent nation or people. Even if we should consider the inhabitants of the Western Sahara to constitute a people in themselves, it should be mentioned that the Sahrawi tribes are not found exclusively in the Moroccan Sahara. A great number of Sahrawis live in the entire south-west region of Algeria, from Bechar all the way to the borders between Mauritania and Mali, and in the northwest of Mauritanian territory, to the north of Mali between Timbuktu and the Algerian borders, through Taoudeni.34

  • 35 Eric Jensen, Western Sahara: Anatomy of Stalemate. London and Boulder, VQ: Lynne Rienner, 2005, p. (...)
  • 36 Ibid.

46Many international actors interested in the Western Sahara issue have been aware that the self-determination option in the Western Sahara region is unworkable without a new vision that takes into account the inadequacy of the independence option. One of the major obstacles to the referendum option is an inability to define who would be entitled to vote in such a referendum. Erik Jensen has treated this issue eloquently with the following questions: “Who is a Sahrawi, who is a western Saharan, and who should be entitled to vote in the referendum? Who should be the determining self in the fact of self-determination?”35 The core issue, according to Jensen, has been which electorate are deemed to be qualified to vote in a referendum. For Moroccans, the right to vote must be comprehensively based on the principle of jus sanguinis and, thus, extended to all Saharan tribes linked to the former Spanish Sahara. For POLISARIO, the electorate should be narrowly defined in terms of jus soli: limited to those counted in the Spanish census of 1974.36

47The statement made at the Security Council on 21 April 2008 by the former Personal Envoy of the Secretary-General for Western Sahara, Peter Van Walsum, certainly reflected international awareness of the reality of the Western Sahara issue. Van Walsum considered that an independent Western Sahara is not a realistic proposition and not a reachable goal. He also urged the parties concerned to resume negotiations based on exclusion of the option of a referendum.

48Furthermore, the creation of an independent state that lacks the basic conditions of viability and continuity is bound to constitute a heavy burden for the entire international community, particularly for nearby countries of the region. The risk is that such a microstate is likely to cast the entire Maghreb region into a period of trouble and uncertainty. Significantly, reservations expressed by the international community with respect to POLISARIO’s separatist thesis indicate a growing awareness of the inappropriateness of creating mini-states. Such entities represent yet another heavy burden to be borne by a world that is already weighed down by political, economic and security-related problems. Today, failed states often become breeding grounds for groups involved in arms and drug trafficking, social violence and human-rights violations. To set up a failed state in the Sahara, bordering the Atlantic Ocean, would undoubtedly have a serious impact on international peace and security.

  • 37 Said Saddiki, “A Reading of the Constitution of the Pseudo-Sahrawi Arab Democratic Republic”, p. 8 (...)

49In addition, the application of such a narrow and rigid principle of self-determination, as claimed by the POLISARIO Front and its supporters, especially Algeria, implies some very dangerous political and security ramifications. Indeed, it will be at the root of some unceasing troubles in the Maghreb region, troubles which will not stop at the borders of a given country, particularly when we bear in mind the ethnic, linguistic and tribal composition of the countries of the region, mainly Algeria.37 The diversity of the population of the Maghreb countries can be a source of strength and wealth, if properly employed. If manipulated or mismanaged, however, such population diversity could generate trouble and tension with unprecedented political and security repercussions. Such inflammation will not hold within a particular country; rather, it will consume the whole region.

Moroccan Autonomy Initiative: A Middle-ground Resolution

  • 38 Article 3 of the Moroccan Project of Autonomy.

50In order to break out of the impasse of the Western Sahara issue and respond to calls that have been regularly launched by the Security Council since 2004 to “the parties and States of the region to continue to cooperate fully with the United Nations to end the current impasse and to achieve progress towards a political solution”, Morocco submitted a proposal for autonomy for the Sahara in 2007, within the framework of the kingdom’s sovereignty and national unity. This initiative, according to the official document, is part of the endeavors made to build a modern, democratic society based on the rule of law, collective and individual freedoms and economic and social development. As such, it brings hope for a better future for the region’s populations, puts an end to separation and exile and promotes reconciliation.38

  • 39 Patrick Thornberry, “The Democratic or Internal Aspect of Self-determination With Some Remarks on (...)
  • 40 Moroccan Initiative for Negotiating an Autonomy Statute for the Saharan Region, 10 April, 2007.

51The Moroccan Autonomy Initiative took great care to conform to the principle of self-determination, giving it a special meaning compatible with the specificity of the Western Sahara issue. The concept of autonomy is related to what is known in international law as “internal self-determination”. This refers to the right to exercise political, economic and cultural autonomy within an existing state and is concretely translated into the establishment of control over the political, economic, social and cultural development of the concerned region. In Patrick Thornberry’s words, “the external dimension or aspect [of self-determination] defines the status of a people in relation to another people, State or Empire, whereas the democratic or internal dimension should concern the relationship between a people and ‘its own’ State or government”.39 Article 5 of the Moroccan Autonomy Project falls within the latter perspective in so far as it stipulates that “the Sahara populations will themselves run their affairs democratically, through legislative, executive and judicial bodies enjoying exclusive powers. They will have the financial resources needed for the region’s development in all fields, and will take an active part in the nation’s economic, social and cultural life”.40

52Unlike other proposed projects, including the referendum, which have encountered tremendous problems in terms of their implementation, the Moroccan Autonomy Initiative seems to be a concrete project. The Moroccan Initiative has, thanks to its realism, garnered wide international support within the Security Council and elsewhere because it is considered as a credible and realistic solution to the conflict in the Sahara.

  • 41 Markku Suksi, “On the Entrenchment of Autonomy”, in Autonomy: Applications and Implications, Markk (...)
  • 42 Kristian Myntti, “The Beneficiaries of Autonomy Arrangements — with Special Reference to Indigenou (...)
  • 43 Article 2 of the Spanish Constitution states that “The Constitution […] Recognizes and Guarantees (...)

53Comparative constitutional law has been able to lift the ambiguity surrounding the definition of the notion of the autonomy statute, given that the right to self-government has resulted, in some cases, from the practical experience of autonomy statutes. At this level, three categories of autonomy statutes can be distinguished which spring from constitutional practice.41 The first category is the one organized by the constitution of the state concerned, which gives the autonomous authority its own judiciary as well as some exclusive legislative powers. For example, this arrangement applies in the Aaland Islands of Finland, the region of Gagauzia in Moldova and other instances in Spain, Italy and Portugal. The second category is composed of the specific statutes of an official constitutional delegation and concerns the power to create laws except for its own laws. Here, working examples include Greenland and the Faeroe islands in Denmark. In contrast to the first category, the second is an example of a “fully autonomous territory”, or, as Kristian Myntti described the case of Greenland, an “autonomous territory proper”.42 The third category constitutes regimes of autonomy that enjoy a specific constitutional statute whereby the attribution of ordinary administrative and judicial competence belongs to those of the central authorities concerned. The Crimea region in Ukraine falls into this third category. According to the studies conducted by Markku Suksi (1998), only the Spanish Constitution provides for the autonomy as a claimable constitutional right (Article 2 of the Spanish Constitution),43 whereas all other constitutions do not recognize the statute of autonomy as a constitutional right.

54Hence, the Moroccan Initiative appears to be a middle-ground solution. It states in Article 29 that “the Moroccan Constitution shall be amended and the autonomy Statute incorporated into it, in order to guarantee its sustainability and reflect its special place in the country’s national juridical architecture”. The integration of the autonomy statute of the Western Sahara region in the constitutional text reflects, indeed, the importance given by Moroccan decision makers to this project.

  • 44 Article 17 of the Moroccan Project of Autonomy.

55As far as the competences attributed to the autonomous region are concerned, there are two cases where the exclusive competences of the central power are listed when the attributions of the autonomous region emanate from the organic or ordinary law. Otherwise, only the exclusive competences of the autonomous region are listed, which implicitly suggests that all other attributions belong to the central authority, be they exclusive to the state or in common bond with the autonomous region. In yet a third situation, one which was equally adopted by the Moroccan project, the exclusive competences of the central power and the autonomous region are laid out in a clear manner either in connection with exclusive or conjoined competence. One condition, however, is that “powers which are not specifically entrusted to a given party shall be exercised by common agreement, on the basis of the principle of subsidiarity”.44

56In addition to the above, the Moroccan project is also characterized by seeking to establish a negotiated autonomy on the basis of compromise between the parties concerned and is not imposed unilaterally by constitutional, ordinary or organic law. That is why the Moroccan government considers it as a ground for negotiations with POLISARIO, not a final version of the autonomy statute.

Continuation of the status quo

57The third possibility is that the Western Sahara Wall will perpetuate for many years, consolidating the status quo in the region, since there are no indications of a clear willingness from POLISARIO to compromise its position on creating an independent state in the region. This status quo scenario may take one of two paths:

  • Continuation of the current stalemate of the Western Sahara issue that has been in place for the previous three decades.
  • Implementation of an autonomy statute in the Western Sahara region unilaterally by Morocco, as a result of the failure of negotiations between the two sides that were initiated in 2007 under UN auspices.

58Aware of the gravity of this scenario, some observers have warned that the collapse of negotiations between Morocco and POLISARIO will have far-reaching impacts on the future of the Western Sahara dispute and will perpetuate the status quo. This conclusion is associated with the rise of many voices in Morocco that call for applying the autonomy initiative unilaterally in the framework of the new Moroccan policy of advanced regionalization, which aims at improving and enhancing the competence of local authorities.

59Some international and regional powers are satisfied with the maintenance of the status quo in the region because they benefit from the current situation. The prevailing view in the United Nations is to put an end to the problem and overcome the current stalemate. Secretary-General Ban Ki-Moon stated, in the UN report on the situation concerning Western Sahara on 14 April 2008, that the momentum developed in recent years can be maintained only by trying to find a way out of the current political impasse through realism and a spirit of compromise from both parties. He concluded that “the consolidation of the status quo is not an acceptable outcome of the current process of negotiations”.

60The Western Sahara issue is one of the heavy legacies of the colonization age that left Africa with arbitrary and unreasonable borders which were demarcated inequitably. Therefore, the Berm is just one aspect of a complex conflict, and it will disappear only once the original issue is brought to an ultimate and just resolution. The paradox is that the Western Sahara itself is also but one aspect of the regional system that has existed in the Maghreb region since the end of French colonialism.

61Although granting an autonomy statute for the Western Sahara region is currently an equitable and realistic solution for the issue because it aims to achieve a middle-ground resolution, it cannot be separated from the nature of the current Maghreb system that is marked by competition for regional leadership. Currently, there are no indications of establishing cooperation between the two countries on border control because of three key factors: first, the continuing influence of the “deep state” and the enduring political deadlock in Algeria; second, the current structure of the Maghreb regional system and the existing balance of power in the region; and third, Algeria currently has no interest in settling the dispute. So long as the current regional system exists and the concerned international and regional powers are satisfied with the maintenance of the status quo in the region, there is little hope of resolving the issue.

Notas

1 This chapter is drawn, with permission from the publisher, from: “The Sahara Wall: Status and Prospects”, Journal of Borderlands Studies, Vol. 27, No. 2 (2012), pp. 199–212.

2 I use in this chapter the terms “Sahara” and “Western Sahara” interchangeably.

3 William Zartman, Ripe for Resolution: Conflict and Intervention in Africa. New York: Oxford University Press, 1989, pp. 70–71.

4 POLISARIO is an acronym for the Popular Front for the Liberation of Saguia el Hamra and Rio de Oro, founded in Zouerate (Mauritania) on 29 April 1973 with the purpose of obtaining independence for Western Sahara.

5 Khadija Mohsen-Finan, “Murs de défense au Sahara occidental”, Études, Vol. 400, No. 2004 (January 2004), p. 94.

6 ICJ Advisory Opinion of October 16th, 1975, on the Western Sahara, Individual Opinion of Fouad Ammoun (Vice-President), p. 84/93, http://www.icj-cij.org/files/case-related/61/061-19751016-ADV-01-04-EN.pdf

7 Ibid., p. 85/93.

8 ibid.

9 Ibid., p. 83/93

10 Ibid., pp. 86/78–94/86.

11 For further details about these conventions see the ICJ Advisory Opinion of 16 October 1975 on the Western Sahara, p. 51.

12 Ibid., p. 124, p. 41.

13 The Declaration on the Granting of Independence to Colonial Countries and Peoples, U. N. General Assembly Resolution 1514 (XV) of 14 December 1960.

14 James Brown Scott, “The Swiss Decision in the Boundary Dispute between Colombia and Venezuela”, American Journal of International Law, Vol. 16, No. 3 (1922), pp. 428–29, cited in Paul R. Hensel, Michael E. Allison and Ahmed Khanani, “Territorial Integrity Treaties, Uti Possidetis, and Armed Conflict over Territory”, paper presented at the 2006 Shambaugh Conference on “Building Synergies: Institutions and Cooperation in World Politics” [University of Iowa] (October 13, 2006).

15 George Joffe, “The International Court of Justice and the Western Sahara Dispute”, in War and Refugees: The Western Sahara Conflict, Richard Lawless and Laila Monahan (Eds.). London and New York: Pinter Publishers, 1987, p. 17.

16 Ibid.

17 Ibid.

18 Ibid., p. 18.

19 Source: https://commons.wikimedia.org/wiki/File%3ALocationWesternSahara.svg

20 Said Saddiki, “The International Reference of the Moroccan Autonomy Project for the Sahara Region”, Southern Morocco News Letter (July 2008), p. 17.

21 Ibid., p. 18.

22 Ibid.

23 Ibid.

24 Alexandra Novosseloff et Frank Neisse, “La Construction des Murs, ou la Mondialisation à Rebours”, Questions internationales, No. 33 (Septembre-Octobre 2008), p. 101.

25 Zakaria Abouddahab, “Le Mur de Défense du Sahara Occidental à L’épreuve du Droit International et de la Réalité”, paper presented at the International Conference on “Fences and Walls in International Relations” organized by the Raoul-Dandurand Chair of Strategic and Diplomatic Studies in the University of Quebec, Montreal, Canada (29–30 October 2009).

26 Derek Harvey, “The Reagan Doctrine, Morocco, and the Conflict in the Western Sahara: an Appraisal of United States Policy”, PhD Thesis [The University of Utah] (1988), p. 29.

27 Cited by Claude Moniquet, “The POLISARIO Front: Credible Negotiations Partner or After-Effect of the Cold War and Obstacle to a Political Solution in Western Sahara?”, European Strategic Intelligence & Security Center (ESISC) (November 2005), p. 31.

28 Zakaria Abouddahab, “Le Mur de Défense du Sahara Occidental à L’épreuve du Droit International et de la Réalité” (October 29–30, 2009), p. 11.

29 Claude Moniquet, “The POLISARIO Front: Credible Negotiations Partner or After-Effect of the Cold War and Obstacle to a Political Solution in Western Sahara?”, p. 31.

30 See the Military Agreement No. 1 on the MINURSO website as it appeared on 2 January 2010, when it was last archived using the Internet Archive Wayback Machine: http://web.archive.org/web/20090210055157/http://www.minurso.unlb.org/monitoring.html

31 Ibid.

32 Source: the MINURSO website, as archived on the Internet Archive Wayback Machine, http://web.archive.org/web/20090210055157http://www.minurso.unlb.org/monitoring.html

33 For more information about the routes of irregular sub-Saharan immigration see Hein de Haas, “Irregular Migration from West Africa to the Maghreb and the European Union: An Overview of Recent Trends”, Migration Research Series, No. 32 [Geneva: International Organization for Migration] (2008), pp. 17–49.

34 Said Saddiki, “A Reading of the Constitution ‘Sahrawi Arab Democratic Republic’”, Southern Morocco Newsletter (2008), pp. 81–82.

35 Eric Jensen, Western Sahara: Anatomy of Stalemate. London and Boulder, VQ: Lynne Rienner, 2005, p. 13.

36 Ibid.

37 Said Saddiki, “A Reading of the Constitution of the Pseudo-Sahrawi Arab Democratic Republic”, p. 83.

38 Article 3 of the Moroccan Project of Autonomy.

39 Patrick Thornberry, “The Democratic or Internal Aspect of Self-determination With Some Remarks on Federalism”, in Modern Law of Self-Determination, Christian Tomuschat (Ed.). Dordrecht: Martinus Nijhoff, 1993, p. 101.

40 Moroccan Initiative for Negotiating an Autonomy Statute for the Saharan Region, 10 April, 2007.

41 Markku Suksi, “On the Entrenchment of Autonomy”, in Autonomy: Applications and Implications, Markku Suksi (Ed.). The Hague: Kluwer Law International, 1998, pp. 151–71.

42 Kristian Myntti, “The Beneficiaries of Autonomy Arrangements — with Special Reference to Indigenous Peoples in General and the Saami in Finland in Particular”, in ibid., p. 279.

43 Article 2 of the Spanish Constitution states that “The Constitution […] Recognizes and Guarantees the Right to Autonomy of the Nationalities and Regions which make it up and the solidarity among all of them”.

44 Article 17 of the Moroccan Project of Autonomy.

Índice de ilustraciones

Leyenda Fig. 5.1 Location of the Western Sahara. Map by Rei-artur, CC BY-SA 3.0.19
URL http://books.openedition.org/obp/docannexe/image/4564/img-1.jpg
Archivo image/jpeg, 83k
Leyenda Fig. 5.2 Map made by the MINURSO based on the Military Agreement No. 1. This map drawn on 4 May 2007 shows the Operational Area of MINURSO including location of refugee camps in Tindouf.32
URL http://books.openedition.org/obp/docannexe/image/4564/img-2.jpg
Archivo image/jpeg, 205k

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