On 10 December 2020, former President Donald Trump signed a proclamation recognizing Moroccan sovereignty over the Western Sahara. In the text of the proclamation, it is written that Morocco`s serious, credible and realistic autonomy proposal is the only basis for a just and lasting solution for enduring peace and prosperity. After the elections in the US, the Geneva Support Group for the Protection and Promotion of Human Rights in Western Sahara on 18.02.2021 called on members of the US Senate to declare “null and void” former President Donald Trump’s decision to recognize Morocco’s alleged sovereignty over Western Sahara.
If we go a further analyze the full text of the proclamation, we can see that the text was based on the concept of a “political choice” of the US on Western Sahara dispute. In the full text, the concept of political choice was deliberately written with the wordings : “therefore, as of today, the United States recognizes Moroccan sovereignty over the entire Western Sahara territory and reaffirms its support for Morocco’s serious, credible, and realistic autonomy proposal as the only basis for a just and lasting solution to the dispute over the Western Sahara territory The United States believes that an independent Sahrawi State is not a realistic option for resolving the conflict and that genuine autonomy under Moroccan sovereignty is the only feasible solution.”
Now, we need to ask to ourselves, can the US make a political choice for the Western Sahara conflict on the dispute territoryand by its political choice, can the US end the territorial dispute by a political choice by the wording “the United States believes that”? Of course, not and the proclamation of Trump is “null and void” from the minute or the second that it wasproclaimed. And the sad part is that the Geneva Support Group for the Protection and Promotion of Human Rights in Western Sahara in fact legalize this null and void proclamation by a call to the members of the US Senate to declare the nullity of the proclamation.
The Western Sahara conflict is a territorial dispute inside the UN subject to the implementation of Article 73 of the UN Charter. All we know that this is a case of unfinished decolonization in the agenda of the UN Security Council and the 4th Committee of the UN, Special Political and Decolonization Committee. And let’s remember Article 103 of the UN Charter. Article 103 of the Charter of the UN reads as follows: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.
When we define the UN Charter as a constitutional treaty, we need to understand another characteristic feature of any constitution that is the establishment of hierarchy of norms. After the constitution has entered into force, rules claiming to be law of the respective society must be in conformity with the standards determined by the constitution. Article 103 is a rule prescribing that certain obligation, when in conflict with certain other obligations, prevail over the latter. For the sake of clarity, the “elements” of this rule are best examined separately. The phrase “obligations … under the present Charter’ includes, first of all, obligations that stem directly from the Charter. The clearest examples include the duty to settle disputes peacefully, arising from Article 2 (3), and the obligation to refrain from the use of force, as laid down in Article 2 (4). But there are also obligations under the Charter, the precise content of which is determined by an organ of the UN. Most prominently, Article 25 stipulates that Members of the organization “agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. In the Nicaragua case, the International Court of Justice itself came to conclude that “all regional, bilateral, and even multilateral, arrangements that the Parties to this case may have made … must be made always subject to the provisions of Article 103”.
Now, let’s remember the last UN Security Council resolution 2548 on Western Sahara dated 30 October 2020. In the preamble paragraph 7 of resolution 2548 , not only the UN Security Council but the US as well one more time accepted that the UN` commitment to assist the parties to achieve a just, lasting, and mutually acceptable political solution, based on compromise, 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 UN, and noting the role and responsibilities of the parties in this respect. In the operative paragraph 4 of the resolution 2548. The UN Security Council one more time as well the US one more time called upon the parties to resume negotiations under the auspices of the Secretary-General without preconditions and in good faith, taking into account the efforts made since 2006 and subsequent developments with a view to achieving a just, lasting, and 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 UN, and noting the role and responsibilities of the parties in this respect.
Article 1.1 articulates the primary goal of the UN Charter, namely the maintenance of international peace and security and the peaceful settlement of disputes in accordance with international law and procedural justice. Article 2.2 requires that the UN (and its organs) respects the principle of good faith, whereas article 1.3 obliges the organisation to protect human rights. Article 24 of the UN Charter defines functions and powers of the UN Charter. Article 24.1 mentions the primary responsibility for the Security Council for the maintenance of international peace and security whereas Article 24.2 articulates the responsibility of the Security Council to act in accordance with the Purposes and Principles of the UN Charter to achieve the duties. Article 25 of the Charter obliges members of the UN to accept and carry out the decisions of the Security Council. Any actions of the member States of the UN against the decisions of the Security Council is null and void according to Article 103 of the Charter.
The role of the US is limited as written in resolution 2548 of the UN Security Council resolutions only to assist the parties to achieve a just, lasting and mutually acceptable political solution, based on compromise, 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 UN. Donald Trump`sproclamation recognizing Moroccan sovereignty over the Western Sahara was just a political choice that means the proclamation of the former President Donald Trump is null and void from the minute it was proclaimed. As written in the text of the former President Donald Trump`s proclamation, what “the United States believes or not believes” has no legal value for a legal ongoing territorial dispute on the self-determination of the people of Western Sahara. The US is bound by the decisions of the UN Security Council as well as a permanent member of the UN Security Council within the principal of pacta sunt servanda.
The Geneva Support Group for the Protection and Promotion of Human Rights in Western Sahara`s call on members of the US Senate to declare “null and void” former President Donald Trump’s decision to recognize Morocco’s alleged sovereignty over Western Sahara is in fact also null and void. You cannot nullify the null.
Prof. Dr. h.c Mehmet Şükrü Güzel
Founder President of the Center for Peace and Reconciliation Studies