If the topicality poses the problem of the Western Sahara (Moroccan) under the angle of the self-determination of the populations, this should not make forget the unmemorable membership of this territory in Morocco, nor the legitimate character of its rehabilitation to the Motherland since 1975. Morocco, proposes with perseverance the organization of a referendum of self-determination of the populations sahraouies. This position must be apprehended under the angle of the attachment, ever contradicted, of Morocco to the principles governing the friendly relations between the States, of which the maintenance of peaces and safety international and the réglement peaceful one of the disagreements. This document has the aim of briefly pointing out the various titles which melt the marocanity of the Sahara. The symbiosis which characterizes the relations between the Saharan provinces and the remainder of Morocco, the adhesion of the populations to the Monarchy and the Institutions of the Country, the extraordinary achievements achieved since 1975 out of economic and social matter, attest membership of the Sahara in Morocco.
1- Historical and legal bases of the marocanity of the Sahara
The historical bases of the marocanity of the Western Sahara, rest on very many acts, as well at the internal level at the international level.
1° - At the internal level: It is necessary, au préalable, to point out a major fact: Morocco is made up as a State since IXème century. This quality of authentic State is single in the Maghreb. It had been safeguarded even during the bracket of Protectorate (1912-1956). In the structure of operation of this secular Moroccan State, the Sahara always occupied a privileged, and often determining place. Thus, the founders of the dynasties in Morocco came often directly from the one of the tribes of the Sahara Occidental. It is in particular, the case of Almoravides whose founder, Youssef Ben Tachfine (XIème century), was to constitute “Large Morocco” which extended to the borders from Senegal. These close links with the Sahara are not contradicted with the advent with the capacity of the Dynasty Alaouite (XVII ème century), originating in Tafilalet (the Sahara), and which hardly ceased consolidating the national unit and to reinforce the unmemorable bonds between all the areas of Morocco. The exercise of sovereignty by the Moroccan State during its history is characterized by a certain number of specificities due to the particular structure of this State. This characteristic was recognized by the International Court of Justice (C.I.J) (Advisory opinion of the 16/10/75 on the Sahara Occidental § 94, pp. 43-44). The central capacity is exerted by the Sultan “Commander of Believing”. For this reason, he is Religious Chef of the community of believing of which he ensures at the same time the temporal government. The acceptance of the person of the Sultan by the community of believing is carried out by the “Beyâ” or allegiance. The act of allegiance engages those which carry out it with a final and perpetual obedience since the Sultan remains faithful to the precepts of Coran; obedience which, translated into intertemporal terms, proceeds of the traditional reports/ratios binding a State to its nationals. The Sultan, representative of authority supreme on the spiritual and political level, has, inter alia, the load of the defense of the populations and ensures the relationships to the foreign powers. Consequently, the act of allegiance is synonymous with sovereignty. It is besides what judge AMMOUN confirms, in its opinion on the opinion of the C.I.J relating to the Sahara: “… Also allegiance with the Sultan, or Sovereign, was equivalent it to the allegiance in the State. And it is consequently to recognize that the legal bonds of Morocco with the Sahara Occidental recognized by the Court result in political bonds, even bonds of sovereignty” With regard to the Sahara, the exercise of this sovereignty appears on several levels, relating to as well the appointment of local persons in charge (military gouver neurs, judges and chiefs) that the definition of the mission which was assigned to them. During the examination of the business of the Western Sahara by the C.I.J, Morocco presented several tens of texts and documents at internal character which testify to a exercise effective, permanent, continuous and peaceful of sovereignty by the Sultan on the Saharan territories. To take only the colonial occupation, one can retain a certain number of examples relating to the appointment of local persons in charge by the central capacity. Moreover, of the directives were given to these persons in charge to safeguard the territorial integrity of Morocco. In this respect, one must point out the privileged place which occupied the sheik My El Aïnin (as of the end of the XIXème century) in resistance vis-a-vis the foreign incursions in the Sahara Occidental. He was the special representative of the Sultan of which he carried out the policy on the local level. The capacity central, anxious to harden its authority on the southernmost provinces, was to even intervene on the spot in the person of the Sultan him. Thus, to quote only the period preceding protectorate, Hassan 1st had carried out in 1882 and 1886 two forwardings in order to put an end to the foreign aimings on this territory and to install officially different caïds and cadis. In addition, among the demonstrations of exercise of sovereignty, one can raise perception of taxes.
2° - At the international level: Moroccan sovereignty on the Sahara Occidental was devoted by provisions expresses of multiple conventions passed by the Empire Of the sherifs with foreign States. The analysis of certain diplomatic conventions shows that the foreign powers had recourse permanently to the Sultan to protect the activities from their nationals in the Sahara Occidental. They are treaties concluded respectively with Spain in 1861, with the United States of America in 1786 and 1836, and with the United Kingdom in 1856. Other instruments expressly recognize the sovereignty of Morocco on the Sahara. It is, in particular, the case of the treaty anglo-Morrocan of March 13, 1895 whose article 1st laid out that: “… No Power will be able to emit claims on the territories going of the Draâ Wadi in the Cape Bojador and called Tarfaya as it is known as higher and inside because these territories belong to Morocco”. In addition, the sovereignty of Morocco on Rio de Oro was recognized at the international level as the letter testifies some to the Ambassador from France in Tangier, dated November 10, 1898. According to this correspondence: “The Spanish press carries out great noise around recently received news of Rio de Oro and according to which a considerable number of Morrocans - four or five thousand would approach with an aggressive attitude of the aforesaid the factorie”. The C.I.J had to know of all these documents and it did not fail to retain that “the elements and information made available of the Court show the existence, at the time of Spanish colonization, of legal bonds of allegiance between the Sultan of Morocco and certain tribes living on the territories of the Sahara Occidental” (§ 162 of the opinion of 1975). These historical bases make it possible to better apprehend the legal bases on which the finishing of the territorial integrity occurred in 1975 rests.
II - LEGAL BASES OF THE FINISHING OF THE TERRITORIAL INTEGRITY
It is by the Joint Declaration of April 7, 1956 that Spain was to put an end to its presence in the Northern part of the Kingdom of Morocco. This declaration men tionne in particular, in its paragraph 2, that Spain “reaffirms its will to respect the territorial unit of the Empire which guarantee the international treaties. In fact, Spanish colonization was to continue in several parts of the Moroccan territory which will be reassigned only by stages: Tarfaya (1958), Ifni (1969) and the Western Sahara (1975). Chair North (Sebta and Mellilia) are always the object of the territorial dispute maroco-Spanish. Being the Sahara, the Moroccan request for retrocession was permanent, since 1956. Among the manifestations of the will of Morocco to recover his provinces of the South as of the shortly after his independence, one will retain the historical speech made by Feu His Majesty MOHAMED V with Me hamid El Ghizlane in 1958. Addressing itself to the Morrocans of the Sahara, He had pointed out the perpetual allegiance to them which their Ancestors had presented at Moulay Hassan 1st and a permanent and total mobilization of Morocco had promised to them, until the rehabilitation of all Sahara. In the same direction, and as of its establishment, Its Majesty HASSAN II had reiterated this position. Thus, at the time of the first summit conference of Non-aligned (Belgrade, September 1961). It had declared: “… This attack with the territorial integrity of countries independent and members of the United Nations creates a climate of irritation and provocation and constitutes on behalf of the countries colonialists a permanent threat for safety and peace. In Morocco, for example, Spain continues to occupy of the whole areas in the South of our territory: Saquia El Hamra, Ifni and Rio de Oro…”. At the time of its adhesion to the Charter of the OAU, in 1963 Morocco reaffirmed its position by expressing reservations in the following terms: being the realization of the sovereignty and the territorial integrity of Morocco within the framework of its authentic borders, it is important that one knows that this signature of the Charter of the OAU, could not at all be interpreted like an explicit or implicit recognition accomplished facts up to now, refused like such by Morocco, nor like a renunciation of the continuation of the realization of our rights by the legitimate means at our disposal”. In this business, in accordance with its practice, Morocco always sought to lead to a peaceful payment of the disagreement while requiring of Spain to engage of the adapted negotiations, and by seizing the various International Organizations of this file. Answering this call, the General meeting of the United Nations, in her Resolution 2072 (XX) of December 16, 1965, was to ask Spain as an administering power “to immediately take measurements necessary for the release of the colonial domination of the territories of Ifni and the Sahara Occidental and to engage for this purpose of the negotiations on the problems relating to the sovereignty which these two territories pose”. It is necessary to raise here the fact for the General meeting of binding the two questions concerning the territorial integrity of Morocco. The delaying tacticses of Spain were going to lead the General meeting of the United Nations, at the instigation of Morocco, to require an advisory opinion of the C.I.J (resolution 3292 (XXIX) of the 13/12/1974) on the legal situation of the territory the day before Spanish colonization, and in particular its legal bonds with Morocco and Mauritania.
The questions were as follows: 1° - were the Sahara Occidental (Rio de Oro and Saquia El Hamra), at the moment of colonization by Spain, a territory without Master (Terra Nullius)? If the answer to the first question is negative, 2° - Which were the legal bonds of this territory with the Kingdom of Morocco and the Mauritanian unit? Answering by the negative one the first question, the C.I.J recognized, like it was already mentioned, of the bonds of allegiance between the Sultan of Morocco and the tribes of the Sahara Occidental. That attested accuracy of the Moroccan legal theses and made necessary the opening of negotiations with Spain to put a term at the colonial situation of this territory. It is in this direction that the Security Council was going to recall, by its Resolution 377 of October 22, 1975, that the “parts concerned and interested” could engage of the negotiations to settle this disagreement peacefully, on the basis of article 33 of the Charter of the United Nations. In fact, the parts concerned are Morocco, Mauritania and Spain; the interested part being Algeria in its quality of country bordering. It is necessary to raise the fact that the “Polisario” was ignored as well in the resolutions of the O.N.U., that in the official declarations of the Algerian authorities. In fact, Algeria stated not to have any direct claim on the Sahara Occidental. Much more, President Boumedienne made it clear that it encouraged and approved the division of the territory between Morocco and Mauritania. Indeed, in October 1974, at the time of the Summit of the league of the Arab States, it had declared in front of the Heads of State that: “The problem henceforth interests Mauritania and Morocco. I say that I agree and that there is no problem… Many meetings took place in Nouadhibou, Rabat and Agadir right after the Algéro-Morrocan agreement… I assisted with a meeting with His Majesty the King and the President Mauritanian during whom they were appropriate to find a formula to solve this problem after the release, formulates which envisages the share which returns to Mauritania and the share which returns to Morocco. I was thus present and I gave my downstream of any heart and without ulterior motive…” (Files of the League of the Arab States; to see in this direction, the “World” of April 9, 1980). However, I' Spain was going to maintain its policy colonial leading Morocco to start “Green Walk”, this one was going to open the way with the agreement of Madrid signed by Spain, Morocco and Mauritania, laying down the methods of retrocession of this territory (see appendix n° 7; Agreement of Madrid of November 14, 1975). One must underline here that this agreement is in total conformity with the rules of the International law and the charter of the United Nations (see article 5 of the agreement). The General meeting did not fail to recognize the validity of this treaty since it “takes note of the tripartite agreement occurred in Madrid between the governments Spanish, Moroccan and Mauritanian, whose text was forwarded to the Secretary General of the O.N.U. on November 18, 1975” (resolution 3458 (XXX) E3. from the 10/12/1975). The entirety of the provisions of the agreement of Madrid were scrupulously respected by Morocco, in particular those related with the expression of the will of the populations (article 3 of the agreement of Madrid). Indeed, Jemaâ (Parliament), body of which the representativeness and the competence in control of the businesses of the populations, had been recognized by the Mission of visit of the United Nations on the spot in 1975 (NAKED, DOC. 1/10023/Add.5, pp. 40 and ss), had approved the tuner of Madrid. This mode of consultation of the populations is in conformity with the international law and the international practice as regards decolonization. Consequently, self-determination can cover, according to the rules of the international law, several forms. This was very largely underlined at the time of the examination by the C.I.J of the business of the Sahara. So the retrocession of the Sahara by Spain in Morocco is in conformity with the titles historical and legal and satisfy international legality by its respect with the resolutions of the United Nations, the Agreement of Madrid and the wishes of the populations. More especially as the rehabilitation of the Sahara to the Motherland impelled a development without precedent of this part of the Kingdom.
1- Historical and legal bases of the marocanity of the Sahara
The historical bases of the marocanity of the Western Sahara, rest on very many acts, as well at the internal level at the international level.
1° - At the internal level: It is necessary, au préalable, to point out a major fact: Morocco is made up as a State since IXème century. This quality of authentic State is single in the Maghreb. It had been safeguarded even during the bracket of Protectorate (1912-1956). In the structure of operation of this secular Moroccan State, the Sahara always occupied a privileged, and often determining place. Thus, the founders of the dynasties in Morocco came often directly from the one of the tribes of the Sahara Occidental. It is in particular, the case of Almoravides whose founder, Youssef Ben Tachfine (XIème century), was to constitute “Large Morocco” which extended to the borders from Senegal. These close links with the Sahara are not contradicted with the advent with the capacity of the Dynasty Alaouite (XVII ème century), originating in Tafilalet (the Sahara), and which hardly ceased consolidating the national unit and to reinforce the unmemorable bonds between all the areas of Morocco. The exercise of sovereignty by the Moroccan State during its history is characterized by a certain number of specificities due to the particular structure of this State. This characteristic was recognized by the International Court of Justice (C.I.J) (Advisory opinion of the 16/10/75 on the Sahara Occidental § 94, pp. 43-44). The central capacity is exerted by the Sultan “Commander of Believing”. For this reason, he is Religious Chef of the community of believing of which he ensures at the same time the temporal government. The acceptance of the person of the Sultan by the community of believing is carried out by the “Beyâ” or allegiance. The act of allegiance engages those which carry out it with a final and perpetual obedience since the Sultan remains faithful to the precepts of Coran; obedience which, translated into intertemporal terms, proceeds of the traditional reports/ratios binding a State to its nationals. The Sultan, representative of authority supreme on the spiritual and political level, has, inter alia, the load of the defense of the populations and ensures the relationships to the foreign powers. Consequently, the act of allegiance is synonymous with sovereignty. It is besides what judge AMMOUN confirms, in its opinion on the opinion of the C.I.J relating to the Sahara: “… Also allegiance with the Sultan, or Sovereign, was equivalent it to the allegiance in the State. And it is consequently to recognize that the legal bonds of Morocco with the Sahara Occidental recognized by the Court result in political bonds, even bonds of sovereignty” With regard to the Sahara, the exercise of this sovereignty appears on several levels, relating to as well the appointment of local persons in charge (military gouver neurs, judges and chiefs) that the definition of the mission which was assigned to them. During the examination of the business of the Western Sahara by the C.I.J, Morocco presented several tens of texts and documents at internal character which testify to a exercise effective, permanent, continuous and peaceful of sovereignty by the Sultan on the Saharan territories. To take only the colonial occupation, one can retain a certain number of examples relating to the appointment of local persons in charge by the central capacity. Moreover, of the directives were given to these persons in charge to safeguard the territorial integrity of Morocco. In this respect, one must point out the privileged place which occupied the sheik My El Aïnin (as of the end of the XIXème century) in resistance vis-a-vis the foreign incursions in the Sahara Occidental. He was the special representative of the Sultan of which he carried out the policy on the local level. The capacity central, anxious to harden its authority on the southernmost provinces, was to even intervene on the spot in the person of the Sultan him. Thus, to quote only the period preceding protectorate, Hassan 1st had carried out in 1882 and 1886 two forwardings in order to put an end to the foreign aimings on this territory and to install officially different caïds and cadis. In addition, among the demonstrations of exercise of sovereignty, one can raise perception of taxes.
2° - At the international level: Moroccan sovereignty on the Sahara Occidental was devoted by provisions expresses of multiple conventions passed by the Empire Of the sherifs with foreign States. The analysis of certain diplomatic conventions shows that the foreign powers had recourse permanently to the Sultan to protect the activities from their nationals in the Sahara Occidental. They are treaties concluded respectively with Spain in 1861, with the United States of America in 1786 and 1836, and with the United Kingdom in 1856. Other instruments expressly recognize the sovereignty of Morocco on the Sahara. It is, in particular, the case of the treaty anglo-Morrocan of March 13, 1895 whose article 1st laid out that: “… No Power will be able to emit claims on the territories going of the Draâ Wadi in the Cape Bojador and called Tarfaya as it is known as higher and inside because these territories belong to Morocco”. In addition, the sovereignty of Morocco on Rio de Oro was recognized at the international level as the letter testifies some to the Ambassador from France in Tangier, dated November 10, 1898. According to this correspondence: “The Spanish press carries out great noise around recently received news of Rio de Oro and according to which a considerable number of Morrocans - four or five thousand would approach with an aggressive attitude of the aforesaid the factorie”. The C.I.J had to know of all these documents and it did not fail to retain that “the elements and information made available of the Court show the existence, at the time of Spanish colonization, of legal bonds of allegiance between the Sultan of Morocco and certain tribes living on the territories of the Sahara Occidental” (§ 162 of the opinion of 1975). These historical bases make it possible to better apprehend the legal bases on which the finishing of the territorial integrity occurred in 1975 rests.
II - LEGAL BASES OF THE FINISHING OF THE TERRITORIAL INTEGRITY
It is by the Joint Declaration of April 7, 1956 that Spain was to put an end to its presence in the Northern part of the Kingdom of Morocco. This declaration men tionne in particular, in its paragraph 2, that Spain “reaffirms its will to respect the territorial unit of the Empire which guarantee the international treaties. In fact, Spanish colonization was to continue in several parts of the Moroccan territory which will be reassigned only by stages: Tarfaya (1958), Ifni (1969) and the Western Sahara (1975). Chair North (Sebta and Mellilia) are always the object of the territorial dispute maroco-Spanish. Being the Sahara, the Moroccan request for retrocession was permanent, since 1956. Among the manifestations of the will of Morocco to recover his provinces of the South as of the shortly after his independence, one will retain the historical speech made by Feu His Majesty MOHAMED V with Me hamid El Ghizlane in 1958. Addressing itself to the Morrocans of the Sahara, He had pointed out the perpetual allegiance to them which their Ancestors had presented at Moulay Hassan 1st and a permanent and total mobilization of Morocco had promised to them, until the rehabilitation of all Sahara. In the same direction, and as of its establishment, Its Majesty HASSAN II had reiterated this position. Thus, at the time of the first summit conference of Non-aligned (Belgrade, September 1961). It had declared: “… This attack with the territorial integrity of countries independent and members of the United Nations creates a climate of irritation and provocation and constitutes on behalf of the countries colonialists a permanent threat for safety and peace. In Morocco, for example, Spain continues to occupy of the whole areas in the South of our territory: Saquia El Hamra, Ifni and Rio de Oro…”. At the time of its adhesion to the Charter of the OAU, in 1963 Morocco reaffirmed its position by expressing reservations in the following terms: being the realization of the sovereignty and the territorial integrity of Morocco within the framework of its authentic borders, it is important that one knows that this signature of the Charter of the OAU, could not at all be interpreted like an explicit or implicit recognition accomplished facts up to now, refused like such by Morocco, nor like a renunciation of the continuation of the realization of our rights by the legitimate means at our disposal”. In this business, in accordance with its practice, Morocco always sought to lead to a peaceful payment of the disagreement while requiring of Spain to engage of the adapted negotiations, and by seizing the various International Organizations of this file. Answering this call, the General meeting of the United Nations, in her Resolution 2072 (XX) of December 16, 1965, was to ask Spain as an administering power “to immediately take measurements necessary for the release of the colonial domination of the territories of Ifni and the Sahara Occidental and to engage for this purpose of the negotiations on the problems relating to the sovereignty which these two territories pose”. It is necessary to raise here the fact for the General meeting of binding the two questions concerning the territorial integrity of Morocco. The delaying tacticses of Spain were going to lead the General meeting of the United Nations, at the instigation of Morocco, to require an advisory opinion of the C.I.J (resolution 3292 (XXIX) of the 13/12/1974) on the legal situation of the territory the day before Spanish colonization, and in particular its legal bonds with Morocco and Mauritania.
The questions were as follows: 1° - were the Sahara Occidental (Rio de Oro and Saquia El Hamra), at the moment of colonization by Spain, a territory without Master (Terra Nullius)? If the answer to the first question is negative, 2° - Which were the legal bonds of this territory with the Kingdom of Morocco and the Mauritanian unit? Answering by the negative one the first question, the C.I.J recognized, like it was already mentioned, of the bonds of allegiance between the Sultan of Morocco and the tribes of the Sahara Occidental. That attested accuracy of the Moroccan legal theses and made necessary the opening of negotiations with Spain to put a term at the colonial situation of this territory. It is in this direction that the Security Council was going to recall, by its Resolution 377 of October 22, 1975, that the “parts concerned and interested” could engage of the negotiations to settle this disagreement peacefully, on the basis of article 33 of the Charter of the United Nations. In fact, the parts concerned are Morocco, Mauritania and Spain; the interested part being Algeria in its quality of country bordering. It is necessary to raise the fact that the “Polisario” was ignored as well in the resolutions of the O.N.U., that in the official declarations of the Algerian authorities. In fact, Algeria stated not to have any direct claim on the Sahara Occidental. Much more, President Boumedienne made it clear that it encouraged and approved the division of the territory between Morocco and Mauritania. Indeed, in October 1974, at the time of the Summit of the league of the Arab States, it had declared in front of the Heads of State that: “The problem henceforth interests Mauritania and Morocco. I say that I agree and that there is no problem… Many meetings took place in Nouadhibou, Rabat and Agadir right after the Algéro-Morrocan agreement… I assisted with a meeting with His Majesty the King and the President Mauritanian during whom they were appropriate to find a formula to solve this problem after the release, formulates which envisages the share which returns to Mauritania and the share which returns to Morocco. I was thus present and I gave my downstream of any heart and without ulterior motive…” (Files of the League of the Arab States; to see in this direction, the “World” of April 9, 1980). However, I' Spain was going to maintain its policy colonial leading Morocco to start “Green Walk”, this one was going to open the way with the agreement of Madrid signed by Spain, Morocco and Mauritania, laying down the methods of retrocession of this territory (see appendix n° 7; Agreement of Madrid of November 14, 1975). One must underline here that this agreement is in total conformity with the rules of the International law and the charter of the United Nations (see article 5 of the agreement). The General meeting did not fail to recognize the validity of this treaty since it “takes note of the tripartite agreement occurred in Madrid between the governments Spanish, Moroccan and Mauritanian, whose text was forwarded to the Secretary General of the O.N.U. on November 18, 1975” (resolution 3458 (XXX) E3. from the 10/12/1975). The entirety of the provisions of the agreement of Madrid were scrupulously respected by Morocco, in particular those related with the expression of the will of the populations (article 3 of the agreement of Madrid). Indeed, Jemaâ (Parliament), body of which the representativeness and the competence in control of the businesses of the populations, had been recognized by the Mission of visit of the United Nations on the spot in 1975 (NAKED, DOC. 1/10023/Add.5, pp. 40 and ss), had approved the tuner of Madrid. This mode of consultation of the populations is in conformity with the international law and the international practice as regards decolonization. Consequently, self-determination can cover, according to the rules of the international law, several forms. This was very largely underlined at the time of the examination by the C.I.J of the business of the Sahara. So the retrocession of the Sahara by Spain in Morocco is in conformity with the titles historical and legal and satisfy international legality by its respect with the resolutions of the United Nations, the Agreement of Madrid and the wishes of the populations. More especially as the rehabilitation of the Sahara to the Motherland impelled a development without precedent of this part of the Kingdom.
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