THE LEGAL TIES BETWEEN MOROCCO AND WESTERN SAHARA
BY: TAOUFIQ GAZOULIT
The legal ties between the Kingdom of Morocco and Western Sahara, went back to centuries, in fact the Sultans of Morocco legislated for the provinces of Western Sahara, as they did for the rest of the national territory. This legislation took the form of dahirs (decrees) and extended to economic activity through the control of trade and production, in particular as regard to fishing, the monopoly on which was generally reserved for the subjects of the Sultan except in cases of special concessions to foreigners. It also extended to the administration of the ports, in order to open or close them to foreign trade according to the requirements of national policy.
The legislative authority of the Sultan also related to raw materials and fiscal matters through the assessment, imposition and collection of taxes and dues. The Spanish historian HUICI says in his political history of the Almohad Empire, that Sultan Abdelmoumen levied taxes in the far souss, which straddles the valley of Seguia Al Hamra.
Allegiance to the Sultan was of a political and constitutional character, even at the time of colonization by Spain that is towards the end of the nineteenth century, the Sultan exercised legislative and executive powers, to which was added spiritual power. He exercised these powers by means of dahirs issued under his own signature. This means that the Sultan at that time personified the state through the powers he exercised. Allegiance to the Sultan was therefore equivalent to allegiance to the state. In this respect, it is worth stating that the legal ties between Morocco and Western Sahara were recognized by the international court of justice.
Internal manifestations of Moroccan authority over Western Sahara
The Moroccan Sultans exercised power by means of dahirs not only for executive but also for legislative matters. This was how they appointed and dismissed the caids to whom they gave responsibilities of government in a region, on a coast or over a group of tribes. The caids were the military commanders who also had administrative functions. The choice of a Sultan could fall on a person because of his local influence or family or tribal connections. In this respect, six historians, one French, Vernet and five Spanish: Domeneh, Lafluente, Seco de Lucena,Huici and Romeu, relate events which , in the case of vernet, date back to the seventh century .On page 36 of his work, “islamisation”, Vernet recounts how, after the Arab conquest of Morocco by Okba Ibn NAAFI in 681, Moussa Ibn Nosair ( a Lebanese chief converted to Islam who accompanied Tariq ben ziad in his crossing of the straits of Gibraltar and in the conquest of Spain )sent his son Merouan to the furthest Souss which is situated between the boundaries of seguia al hamra . Vernet also adds the following facts:
• In 740 the Moroccan governor (or caid) called Ismail Ben Obeidetallah was appointed to Seguia al hamra.• In 745 Okba’s great – nephew went almost to the end of Western Sahara and dug the first wells.• In 761 the Sahara had a Moroccan governor called Mohammed Sonjai, who conducted a campaign in the Sudan.
From this time on, continues Vernet the dynasty of the Idrissids did not cease to govern the Sahara until the following dynasty of the Almoravids.
THE MILITARY EXPEDITIONS
In the past, the authority of the Sultan over Western Sahara was recognized by the international community .The expeditions undertaken by the Sultans took two forms: some had the purpose of controlling Western Sahara and more particularly, Seguia al hamra, and others crossed Western Sahara in order to reach countries in the south as far as the river of Niger. The autoresse of “Avec les Rois Alaouites” Odette de Puigaudeau, notes that: “The cherifian interventions lost their character of conquest and only retained that of tours of Inspection and prestige”. This was at the end of Moulay Hassan’s reign, which is considered to be the first period of colonization by Spain. Documents show that reports written by diplomats admitted the legal ties between Morocco and Western Sahara. For example, in his report to the French foreign minister the French consul in Western Sahara wrote: “the expedition of Sultan Moulay Hassan to the Souss can be regarded as fully completed. It was a triumphal progress all the way. All the tribes made their submissions and swore allegiance to him. Even the very nomads of the Sahara were bent on bringing him fast camels and offering him their help in the holy war” (see report of 7 June 1886 to the French foreign minister. “Documents diplomatiques Francais 1871-1914”). What should be noted from this report are the passages concerning the oaths of allegiance of the tribes and the help which they offered the Sultan with regard to the holy wars
RELIGIOUS TIES
It is worth noting that the religious tie is one of the constituent elements of the legal ties between the Kingdom of Morocco and Western Sahara region. To prove the existence of this kind of tie one must quote in particular Paul Cambon, the French ambassador in Madrid, who reported the following observation to his minister of foreign affairs: “It has always been recognized that the territorial sovereignty of the Sultan extends as far as his religious suzerainty, and it is beyond doubt that the peoples of cape juby are subject to him from the religious point of view, we could consider its sovereignty as indisputable” (see “documents diplomatiques français 1871-1914, first series’ )
THE TREATIES
The legal ties between Western Sahara and the kingdom of Morocco were actually recognized in the treaties which took away Moroccan independence. These treaties are the basis to assess the ties that always existed between Western Sahara and the Kingdom of Morocco. To start with, there is the Anglo-Moroccan agreement of 13 march 1895, clause I of which reads as follows: “If this government buys the building etc…in the place above – named From the above-named company, no-one will have any claim to the Lands that are between Wadi Draa and cape boujdour, and which are called Tarfaya above-named, and all the lands behind it, because all this belongs to the Territory of Morocco”
Great Britain thus recognized that Moroccan territory extended to cape boujdour, including SEGUIA AL HAMRA. Moreover, the letters annexed to the treaty of 4 November 1911 signed between France and Germany, state: “Germany will not intervene in any special agreements which France and Spain may think fit to conclude with each other on the subject of Morocco comprises all the part of northern Africa which is situated between Algeria, French west Africa and the Spanish colony of Rio de Oro (wadi dahab)”
THE ALAOUITES AND WESTERN SAHARA
The Alaouite dynasty has ruled Morocco since the mid-seventeenth century. In pre-colonial times, three of the Alaouite Sultans: Moulay Rachid, Moulay Ismail, and Moulay Hassan, were already pursuing active Saharan policies. In 1905-1906, Sultan Moulay Abdul Aziz sent military support to sheikh Maouelainin to support him in his fight against the French.
Morocco continued the struggle against its division and occupation at the beginning of the nineteenth century. Moroccan resistance on the central government as well as the popular level, prevented the entire occupation of Western Sahara and the rest of Moroccan territory until the beginning of the last century, when this became unavoidable. However, the fight continued in different forms and finally led to the recognition of Morocco’s independence in 1956. The Moroccan Spanish declaration of 7 April 1956 and one signed with France on 2 march of the same year, contained confirmation of Spain’s desire to “respect territorial unity guaranteed by international treaties” and the commitment to “take all necessary steps to put this into effect” . In the same year the Moroccan army of liberation started organizing guerrillas for an offensive against the Spanish at Ifni, and Western Sahara. In 1957, the Moroccan Liberation army succeeded in pushing the Spanish back to the coast. It was only with the aid of French troops that Spain was able to re-establish itself in Western Sahara.
After Morocco independence late King Mohammed V formally claimed Western Sahara as an integral part of the Kingdom. In 1957, he set up the “direction des affaires sahariennes et frontalieres”, and on 25 February 1958 he formally demanded the return of Western Sahara to the motherland Morocco. He said in a famous speech in the little oasis town of M’hamed on the edge of the Sahara: “we will continue to do everything in our power to recover our Sahara and all that which, by historical evidence and by the will of its inhabitants, belongs as of right to our kingdom”
Late King Hassan II’s initiative in organizing a peaceful march to the Sahara, in November 1975 led to the Madrid agreement of 14 November 1975, it was in practical terms, the first step towards the process of decolonization of the west Saharan territories.The green march (Al Massira al khadra in Arabic), could be described as the master stroke which resolved the dispute between Morocco and Spain. Plans for the march, which was named after the holy colour of Islam, were first announced by King Hassan II on 16 October 1975.recruting offices were set up throughout morocco, and by 20 of October as many as 524,000 volunteers were said to have registered. The march caught the imagination of the Moroccan people. It was portrayed as a holy march (jihad), and its participants were told that they would be armed only with the coran and they should consider themselves as Mujahidin, or holy warriors, in a campaign to reclaim Islamic territory from the Spanish invaders. The marchers numbered 350,000 volunteers and gradually assembled in a vast tent city near Tarfaya .It became evident to the Spanish government as much as to western observers of this remarkable mobilization, that King Hassan II would be unable to call off the march or fail in his pledge to send the marchers across the border even if he had wished to do so , he said : “ I can not turn 350, 000 Moroccans who have responded to my call with enthusiasm into 350,000 frustrated Moroccans”.
As soon as Spain accepted the reopening of negotiations, on 9 November 1975, late king Hassan II ordered the marchers to return to their homes. On 14 november 1975, an accord was signed in Madrid to crown the negotiations with Spain By Morocco and Mauritania, in accordance with article 33 of the United Nations charter, and resolution 380.
The difference of opinion over Western Sahara which, until 1975, divided Morocco and Spain does not therefore date from the time when the United Nations organization took an interest in the issue. It dates back to the period in morocco’s history when, during the nineteenth century, the country was faced with the ambitious appetites of the colonial powers and their desire to divide Morocco in order to subjugate it.
King Mohammed VI, immediately after his enthronement in 1999, set forth a development strategy built on social and economic development. Initially, the new young king is seen as a reformer, keen to liberalize the economy, root out corruption and establish the rule of law and democracy. When he was crown prince he was beside his father late king Hassan II in most the national and international activities, and in particular when it comes to the Western Sahara issue. In this respect during summer of 1996 a delegation of the Polisario front led by Bachir Mustapha Said met the crown prince then Sidi Mohammed, that was in practical terms his first direct and secret meeting with the polisario delegation in Morocco, the aim of the meeting was about the application of Autonomy principle in western Sahara, in fact the polisario delegation was in favour of such settlement and also of continuing direct negotiations with the late king Hassan II
Even if the idea of autonomy is not new, Morocco has recently proposed a project for A substantial autonomy of Western Sahara. The project consists of giving Western Sahara a Large autonomy within Moroccan sovereignty. Sahraouis are expected to be offered a Parliament with power over local policies in terms of management and decisions Concerning southern provinces ; cabinet ministries, and their own judiciary, but the Moroccan flag would fly over the territory, the currency and stamps would be Moroccan, and the Moroccan king would remain the highest religious authority in the land.
It is in the same context that the royal advisory council for Saharan affairs, commonly known by its French acronym CORCAS, was created by King Mohammed VI in march 2006, by enhancing its official status and defining its role to “foster the culture of dialogue, and thus pave the way for our citizens to help in this process and make practical proposals on matters pertaining to our country’s territorial integrity” (speech of 25th of march delivered by the monarch of Morocco). This culture of dialogue is the king’s innovative initiative to seek solutions to significant issues facing Morocco. In 2004, Morocco’s truth and reconciliation commission was created to investigate past human rights violations and propose political and judicial reforms which were approved by the king. CORCAS was another example of the king innovative approach to make use of dialogue to find solutions to complex social and economic issues. It is worth mentioning that CORCAS is composed of 140 members (among them 14 women) they represent an ethnic, political, and tribal section of Moroccan society most of CORCAS’s members are representatives from all Sahraoui tribes, including the father of the Polisario leader Mohammed Abdelaziz.
The plan of a substantial autonomy transfers competences and creates local institutions (legislative and executive) within the framework of Moroccan sovereignty .again autonomy is seen by experts in international law as a very advanced form of self determination. This plan was prepared by the Royal Advisory Council for Sahara Affairs (see http://www.corcas.com) and it has been subject to large consultations with the sahraoui populations and Moroccan political parties, before being approved by the young king. On Wednesday, April 11, 2007 the Moroccan government submitted its proposal for a substantial autonomy for the Western Sahara region to the newly nominated secretary general of the United Nations organization, taking the first step, which the international community has called for repeatedly, toward a political direct dialogue with the parties concerned.In its 1754 resolution, on Monday, April 30, 2007 the UN Security Council “calls upon the parties to enter into negotiations without preconditions in good faith. The security council in its resolution concerning western Sahara has taken note of the Moroccan proposal presented to the UN secretary general “...and welcoming serious and credible Moroccan efforts to move the process forward towards resolution” it is an explicit recognition to the efforts made by Morocco, after long and various consultations with the international community ..The 1754 resolution is a fruit of Moroccan endless efforts to overcome the present deadlock. Morocco’s proposal was in no doubt supported by a large number of countries all over the world, among others the USA ,France, and Spain which openly congratulated Morocco for proposing and submitting a courageous and revolutionary project entitled "Moroccan initiative for Negotiating an Autonomy Statute for the Sahara region" whereas the Polisario proposal as the UN's secretary general personal envoy for Sahara, Peter Van Walsum described it «it is consistent With Polisario well known positions" he added that self- determination does not have to mean independence. There are many examples in the world where concerned populations chose, following referendum consultations or other, autonomy or total integration».The young King’s proposal was prepared upon the request of the international community, and it has been a subject to large consultations with sahraouis, IT is wise that all parties concerned including Algeria consider the King’s proposal as a basis for any future settlement . Morocco remains open to this solution that preserves its sovereignty, and territorial integrity, and that allows populations to manage directly, and democratically their local affairs. Morocco is ready to engage in a constructive negotiation to contribute concretely In the process of achieving a last and fair settlement to the Western Sahara issue.
CONCLUSION
The way in which Morocco succumbed to the foreign invaders is unique in the annals of colonisation. Having safeguarded for over twelve centuries its sovereignty, independence and territorial unity as the only organized state in the area, Morocco was, from the beginning of the last century the victim of systematic dismemberment on the part of the European powers. Apart from Ceuta and Melillia and certain towns occupied first by Portugal, and then from the sixteenth century, by Spain , Morocco was divided between France and Spain into several zones of influence, according to the treaty drawn up in 1912. Spain obtained the northern zone together with the entire southern area of Western Sahara comprising Seguia Al Hamra and Rio de Oro.
If one looks at the map of Morocco which has been printed over the years in the “Encyclopaedia Larousse” the surprising observation is that far from expanding at the expense of its neighbours, Morocco has in fact shrunk .Thus in 1888, Larousse described the surface area of the Moroccan territory as being 812,300 square kms, in 1900, the new illustrated Larousse reported it as being only 800,000 square kms0. When independence was declared, Morocco had only 430,810 square kms. After the regaining of Spanish morocco (April 1956) Tangiers (October 1956), the Tarfaya region (1958) the Ifni enclave (1969), Sagui Al Hamra (1976), and Rio de Oro (1979), the country was still barely more than 700,000 square kms.
Western Sahara has been an integral part of the Kingdom of Morocco since time immemorial, even though, historically, there were parts of both the northern and southern portions of Morocco which remained under colonial rule
Western Sahara has been both the heart of the Moroccan nation and the site of Moroccan resistance to colonialism.furthere more, the sovereignty of the Sultans over Western Sahara had always been recognized by other nations before the beginning of territorial imperialism at the end of the nineteenth century. Since the eighteenth century, numerous treaties had shown that foreign countries had recourse to the Sultan to protect their nationals in Western Sahara.
Attempts at territorial secession made at the end of the nineteenth century by the French, Spanish, and even Germans were those on the part of nations or peoples desirous of exercising economic activity in Western Sahara without recognizing local customs or regulations. The reaction of the Moroccan Sultans, in particular Moulay Hassan and the tribal leaders such as Maouelainin proved that these attempts were not made on a land without a ruler, (TERRA NULLIUS), quite the reverse.
