ON HISTORICAL RIGHTS AND THE WESTERN/MOROCCAN SAHARA

ISSUE

http://www.idis.gr/?p=3024

Constantinos Koliopoulos*

1. Introduction

Perceived historical rights of a people or a political entity on a given territory are

nowadays likely to be the prime source of domestic legitimacy – and possibly

international legitimacy as well – of any policy aiming at acquiring that territory or

holding it subsequently. As demonstrated most clearly by the Palestinian Question,

historical rights are often subjective, ill-defined and conflicting. Yet they still serve as

powerful stimuli for public opinion and cornerstones for policy.

This paper is divided into two parts. The first part examines the tricky yet

vastly important issue of “historical rights” of peoples and political entities on

territories. It endeavors to scrutinize the determinants of historical rights and assess

the relative weight of these determinants in the present political context. After that,

the second part applies the findings of the first one to the specific case of the

Western/Moroccan Sahara.

2. Historical rights in perspective

Historical rights may be defined as rights emanating from historical connection of a

people or a political entity with a given territory. Historical rights are different from

legal rights. In fact, they often stand in contradiction to international law. For

instance, A.J.P. Taylor points out that the War of 1859, in which Piedmont and France

attacked Austria and thus brought about the unification of Italy, “was a war of

*
Assistant Professor of International Politics and Strategic Studies, Panteion University;
Professor of Strategic Studies, Hellenic National Defense College. I wish to thank Professors Ahmed
Herzenni, Sotiris Roussos and Yiannis Stivachtis for their valuable insights. Of course I bear sole
responsibility for the views and possible mistakes contained in this paper.

1
uncompromising and unprovoked aggression” that “lacked justification on any basis

of international law”; nevertheless, he adds that “no war has been so unanimously

approved by posterity.”1 This is clearly a case where the historical right of the Italian

nation to certain territories under Austrian rule, plus its right to an independent and

unified Italy have been generally accepted as superior to the legally indisputable

Austrian titles of possession. In the same vein, though not necessarily with the same

degree of international or even domestic approval, Spain is not quite reconciled to the

current legal status of Gibraltar, notwithstanding the provisions of the Treaty of

Utrecht (1713) under which Spain ceded Gibraltar to the British crown. In other

words, the historical Spanish rights to the place are claimed to supersede the

corresponding legal British rights.2

Here, a caveat is in order. This paper does not purport to confer certificates of

legitimacy that supposedly trump international legality. However, it does purport to

shed some light on certain recurring international phenomena, namely that peoples

and political entities may, on historical grounds, lay claim on territories to which they

may not have a clear legal title – if any at all – and occasionally find international

sympathy to those claims. Hence, acknowledging that perceived historical rights do

produce political results but at the same time adopting a neutral stance on specific

claims based on such rights, the paper will examine the various pillars on which

historical rights may claim to rest.

One can identify three such pillars in international practice: rule, ethnicity, and

origin. There is a fourth pillar that may play an enabling role to the other three,

namely proximity or adjacency. We shall examine these pillars in turn.

1
A.J.P. Taylor, The Struggle for Mastery in Europe, 1848-1918 (Oxford-New York: Oxford
University Press, 1954), pp. 104, 112.
2
Cf. “Q&A: Gibraltar row”, BBC, 26 November 2013, http://www.bbc.com/news/uk-politics-
23576039.

2
Rule

Perceived rights of territorial possession based on past rule over a territory are an

early occurrence in interstate relations. Thus, sixth-century3 East Roman emperor

Justinian embarked on a costly and in the long run ruinous attempt to recover Rome

from the Ostrogoths because, though the center of the Roman Empire had by then

irrevocably shifted to Constantinople, Rome had to be ruled by Romans as in the past.

Wars based on dynastic claims were common until well into the modern era.

The Hundred Years’ War (1337-1453) between England and France raged for more

than a century over the dynastic rights the English kings asserted over France. The

eighteenth century witnessed the War of the Spanish Succession (1701-1714) and the

War of the Austrian Succession (1740-1748). In these two wars the competing

dynastic claims over the Spanish and the Austrian throne respectively were essentially

overshadowed by the greater international drama that involved the management of

power relations between the major European states of the time. Still, those dynastic

claims did play a substantial part in the outbreak, the conduct and the final settlement

of the wars in question.

Since the French Revolution and the rise of nationalism, historical rights based

on past rule have been generally transferred from rulers and dynasties to nations and

states. In other words, nowadays it is more customary to claim “national” or “state”

rights over a territory, instead of “royal” or “dynastic” rights. Of course, when

hereditary kingdoms are involved, the concept of dynastic rights still retains its

potency. Thus, from time to time the Hashemite dynasty of Jordan airs aspirations of

3
All dates are A.D. unless otherwise stated.

3
regional leadership or mentorship and sees fit to remind everyone that the dynasty

once ruled the area comprising Jordan, Iraq and Saudi Arabia.4

Territorial rule is the single most important defining characteristic of modern

states. Hence it is no surprise that states are notoriously reluctant to part with territory

and fiercely assert their sovereignty claims even on territory that has been conferred to

them virtually by accident. The Azerbaijani stance on the Nagorno Karabakh issue is

a case in point. Nagorno Karabakh is a mountainous, mainly Armenian-inhabited

enclave within Azerbaijani territory. In 1923 the Soviet leaders decided to

incorporate this territory to the Soviet Socialist Republic of Azerbaijan as an

autonomous district. In the late 1980s, in the process of the disintegration of the

Soviet Union, Nagorno Karabakh sought to secede from Azerbaijan. The

Azerbaijanis would not let go; the whim of a former Soviet leadership had

transmogrified into an Azerbaijani historical right to the area. The result was a

ferocious war in which Azerbaijan lost not only Nagorno Karabakh, but also

substantial territories of Azerbaijan proper – incidentally, the Armenians are none too

keen on returning those. Both Armenia and Azerbaijan are now presumably preparing

for a second round of conflict.5

The attitude is frequently the same regarding territories a modern state had

ruled in the past. This can happen even if the rule had been rather tenuous and not

exactly consensual. The Chinese stance over Tibet is a case in point. The Chinese

Empire asserted suzerainty over Tibet for centuries. Following the collapse of the

imperial regime, the Tibetans drove away the former imperial garrison and Tibet

became de facto independent in 1913. This state of affairs ended in October 1950,

4
See, for instance, “Hashemite Sovereignty in Post-Saddam Iraq?” Hurriyet Daily News, 31
January 1999, http://www.hurriyetdailynews.com/default.aspx?pageid=438&n=hashemite-sovereignty-
in-post-saddam-iraq-1999-01-31.
5
Cf. “Medvedev momentum falters in Nagorno Karabakh”, Strategic Comments, vol. 17,
comment 27 (August 2011).

4
when the newly consolidated Communist regime in Beijing launched a campaign of

re-conquest and forcibly asserted the perceived Chinese historical rights in the area. 6

It is worth noting that Chinese public opinion supports wholeheartedly the re-

imposition and maintenance of Chinese rule in Tibet.7 In other words, the assertion of

Chinese historical rights over Tibet enjoys huge domestic legitimacy in China.

A few more things need to be said about past rule as generator of historical

rights. To start with, past rule does not in itself guarantee historical rights that are

viewed as legitimate internationally, or even at home. Colonial rule is a case in point.

The European colonial powers used to rule vast colonial empires, sometimes for

centuries, and they do tend to retain cultural or even political ties with their former

colonies. Nevertheless, nowadays decolonization is deemed irreversible. Neither the

ex-metropolises nor the ex-colonies consider that past colonial rule has endowed the

former with any historical right to re-impose their rule on the latter. In the relatively

few instances where a metropolis has refused to decolonize, the retention of its rule is

based either on the ethnic composition of the territory in question (see below), or on

sheer legal rights acquired one way or another. Thus, the treaty ending British

colonial rule in Cyprus in 1960 allowed the United Kingdom to retain sovereign

military bases comprising about 3 percent of the island.

The absence of past rule on a given territory is sometimes used as an argument

to reject historical claims on that territory. For instance, in an analysis of the China-

Taiwan issue, it is pointed out that “China never really rules Taiwan”; even though

this statement is not directly linked to the issue of Chinese historical rights over

6
For a contemporary account of the Chinese invasion coupled with useful background
information, see Fred W. Riggs, “Tibet in Extremis”, Far Eastern Survey, vol. 19, no. 21 (Dec. 6,
1950): 224-30.
7
See, among others, Christopher I. Beckwith, “Review of The Status of Tibet: History, Rights,
and Prospects in International Law, by Michael C. van Walt van Praag”, The Journal of Asian Studies,
vol. 47, no. 3 (August 1988): 627.

5
Taiwan, it does not seem to serve any other purpose than as a counter to those

perceived rights.8 However, as the mere incidence of past rule does not suffice to

substantiate legitimate historical rights, so the absence of past rule does not in itself

suffice to negate historical rights that are otherwise perceived as legitimate.

This is especially true in the case of imperial collapse. The deceased or dying

empire may give birth to newly independent states with no prior international

existence but still with every legitimate historical right to exist. Thus, when Austria-

Hungary finally disappeared in 1919, the fact that there had been no independent

Czech or Slovak state before then could not negate those nations’ right to acquire

statehood over their areas of inhabitance.

Moreover, the successor states of a former empire may engage in disputes and

conflicts over the imperial inheritance. These may rage for decades or more. In the

meantime, certain nations or states may claim to have yet unfulfilled historical rights

over certain territories, especially as a result of the ethnic makeup of these territories

(see below), irrespective of whether they have actually ruled them. To point out to

such claimants that they have never exercised formal rule over the coveted territories

would be meaningless to them; as far as they are concerned, their historical rights are

in no way prejudiced.

This is a very important point to make, because satiated nations that have for

centuries had an independent statehood and thus ample opportunity to pursue their

own perceived rights and interests, find it quite difficult to grasp the mindset of

8
Bernice Lee, “The Security Implications of the New Taiwan”, Adelphi Paper 331 (London:
Oxford University Press for The International Institute for Strategic Studies, 1999), p. 14. The
quotation appears in the margins of the main text and actually is not to be found in the text as such. It
appears to have been inserted in order to counter Chinese arguments about China’s historical rights
over Taiwan. Incidentally, the statement is by and large refuted by the text itself, which points out that
since 1683-4 the Chinese imperial authorities had been appointing officials to govern Taiwan, though
the island did not become a formal imperial province until 1885; Lee, “The Security Implications of the
New Taiwan”, p. 14.

6
relatively young states located in regions formerly dominated by empires. Take the

example of South-Eastern Europe, also known as Balkans. Almost a century after the

formal settlement of the Ottoman inheritance in 1923, substantial elements of many

nations in the region continue to regard their national unification as unfinished

business. To cite one example among many, in 1999 it was pointless to remind

Albanians that Kosovo had never been ruled by Albanians as an Albanian-majority

state. Similar situations are encountered in the former Soviet Union and in former

European colonial empires.

Ethnicity

In the previous section we already encountered the issue of historical rights related to

ethnicity. The fact that a certain ethnic group has been dwelling on a given territory is

regarded as a very potent source of historical rights, both domestically and

internationally. “We live (or have been living) here, therefore the territory is ours”; so

the argument goes, and many people abroad will tend to agree.

After that, the logic of the situation can unfold inexorably. People normally

prefer to be governed by people whom they do not consider foreigners. Since the late

eighteenth century this preference has been increasingly regarded as a right. An

obvious corollary is that national or subnational groups (e.g. tribes) that have acquired

statehood will endeavor to expand their political jurisdiction so as to include ethnic

kinspeople who happen to be under the political jurisdiction of other ethnic groups.

This is the well-known phenomenon of irredentism.

Although nowadays the term has acquired a rather pejorative flavor, one

should not forget that irredentism has been a prime motivator of international political

behavior for the last two centuries. Whether one likes it or not, and irrespective of the

dictates of international law, people have been willing to go to war to achieve what

7
they believe is their national unification and they have frequently found much

international sympathy to their cause. This has been the case from the Greek War of

Independence (1821-1832), through the aforementioned War of 1859, all the way to

the Kosovo War (1999). In these wars the degree of international legitimacy varied,

but the overall story was the same: the inhabitants of a given territory, or at least the

majority of them, claimed their historical right to an independent existence and

garnered considerable international support in the process.

Sometimes, when one is seeking national unification, it is important not to

overstep the limits of one’s ethnic presence. Doing so can be disastrous in terms of

domestic legitimacy and thus ruin the whole project. One example is the Greek

campaign in Asia Minor in 1919. Initially all was well, since the Greek troops were

stationed close to the Aegean coast and were quartered among solid masses of Greek

population that had been dwelling in those territories for millennia. However, things

started turning sour when, for military reasons, it was deemed necessary for the Greek

army to advance to the hinterland. Although the Greeks encountered ample evidence

of ancient and medieval Greek presence in the newly conquered areas, it was obvious

that Hellenism had been long extinct from those areas and they had become

thoroughly Turkish. This robbed the Greek army of its sense of purpose and wrought

havoc to its morale.9 In other words, a war in pursuit of perceived historical rights

based on ethnic presence on a given territory enjoyed domestic legitimacy; beyond

that, the war was viewed as a pointless exercise or even sheer aggression and its

domestic legitimacy evaporated.

9
See, among others, Demetrios Ambelas, Independent Division, 2nd edition (Athens:
Constantine Tourikis Publications, 1997 reprint), pp. 10-12 [text in Greek].

8
 Of course, the aforementioned line of reasoning creates a host of problems.10

To start with, the ethnic composition of territories is rarely unmixed. Consequently,

members of an ethnic group may well be found far away from its main areas of

concentration, albeit in relatively small minorities. Thus, two related questions arise.

First, where does an ethnic group draw the territorial line where it deems that its

ethnic historical rights cease to apply? Second, when can a minority count on

international support in turning its perceived historical rights into statehood? The first

question is one of domestic legitimacy and the second is one of international

legitimacy.

As far as historical rights are concerned, the answer to these questions might

seem to hinge upon the degree of ethnic presence in a given territory; the greater the

presence of an ethnic group somewhere, the more likely is it that the group will claim

historical rights and will find international support for them. An examination of the

relevant international practice demonstrates that ethnic groups can be quite self-

indulgent when claiming historical rights over territories, whereas the rest of the

world is probably not so easily convinced, especially after 1945. A significant local

majority is probably a prerequisite for international legitimacy; however, as the still

rather undecided case of Kosovo proves, it might not quite suffice. Domestic

legitimacy can be gained with far less. The self-styled “Turkish Republic of Northern

Cyprus” is a case in point. At the time of the Turkish invasion of Cyprus (1974) the

Turkish Cypriots were a mere 18 percent of the overall population of Cyprus, with

Greek Cypriots constituting 80 percent. This ratio applied throughout the island, so

the Turkish Cypriots were nowhere approaching parity with the Greek Cypriots, let

alone majority. This is probably one of the main reasons why the Turkish Cypriots
10
The cynic might say that these problems are more difficult in theory than in practice. Though
scholars might be troubled by them, public opinion may disregard them and carry over the political
practitioners in a maximalist approach to issues of historical rights based on ethnicity.

9
have been able to achieve virtually no degree of international legitimacy for their self-

styled republic – it is recognized only by Turkey. On the other hand, the Turkish

invasion and occupation of Northern Cyprus, the violent ethnic cleansing of the Greek

Cypriots from the occupied areas, and the proclamation of the “Turkish Republic of

Northern Cyprus” enjoy full domestic legitimacy both in Turkey and in Turkish-

occupied Cyprus.

Not only is the ethnic composition of certain territories mixed, it can also

fluctuate as a result of migration and differential birthrates. This is a recipe for the

emergence of perceived historical rights that are in conflict with one another. Kosovo

once again provides a very dramatic example. The Serbs have for centuries

considered that area the cradle of their civilization, the symbolic importance of

Kosovo being accentuated by the Serb defeat at the hands of the Ottomans in the

homonymous battle (1389). As far as the Serbs are concerned, they possess

inalienable historical rights over the territory. Be that as it may, during Ottoman rule

there was massive Albanian immigration into Kosovo, radically altering the ethnic

makeup there; when Serbia finally acquired Kosovo in 1913, two-thirds of its

inhabitants where ethnic Albanians. By the 1980s, higher Albanian birthrates and

Serbian emigration had further shifted the ratio to 9 to 1 in favor of the Albanians. It

was no accident that the Kosovo Albanians came to assert their own historical rights

over the territory.

When migration is centrally planned or at least encouraged, it falls under the

rubric of colonization. As Machiavelli has pointed out, colonization is one of the

safest ways to retain a conquest.11 The results of colonization may vary considerably.

At the one end of the spectrum, colonists and natives amalgamate and create new

11
Niccolò Machiavelli, The Prince, ch. 3.

10
nations, as has basically happened in Latin America. At the other end, the two ethnic

elements remain more or less separated, maintaining a majority-minority relation.

This can go all the way from overwhelming colonist majority (e.g. United States and

Canada), to big colonist majority (e.g. New Zealand), to somewhere around parity

(e.g. ethnic Han Chinese in Tibet and Xinjang), to big native majority (e.g. South

Africa), to overwhelming native majority, with the colonists concentrated into small

enclaves (e.g. the Portuguese in India). Colonization has sometimes been

accompanied by ethnic cleansing of the colonized territories, making it

simultaneously more effective and more controversial. At any rate, irrespective of

whether colonization is accompanied by ethnic cleansing, the natives – provided any

of them actually live to tell the tale12 – normally view colonization as an unjust

distortion of the ethnic makeup of the colonized territory. One of the most well-

known cases is that of Argentina regarding the British ethnic cleansing and

subsequent colonization of the Falkland/Malvinas islands in the nineteenth century.

However, the very case of the Falkland/Malvinas islands demonstrates the

problems associated with colonization and historical rights. In due course the

colonists develop a sense of belonging to the colonized territories and claim their own

historical right to remain there and to rule the land as bona fide natives – the

American War of Independence (1776-83) shows that this sense of belonging can go

very far indeed. Furthermore, barring conflict between metropolitans and colonials,

the above-described logic of solidarity to one’s ethnic kinspeople applies to this case

as well; as the colonials will cling on their colonies, so the metropolitans will find it

difficult to abandon them. Perceived historical rights emanating from ethnicity are the

most common reasons why a colonial power might even today try to retain colonial

12
For instance, the aboriginal inhabitants of the Canary Islands were exterminated by the
Spaniards at the time of Columbus’ discoveries.

11
possessions in the face of active opposition – with varying success. In 1982 the

British went to war with Argentina for the sake of the Falkland islanders, who wanted

to remain dependent on the United Kingdom instead of joining Argentina; the British

victory ensured that the United Kingdom would retain the islands – or be saddled with

them despite the heavy cost of their defense.13 Spain insists in retaining the

predominantly Spanish-populated North African enclaves of Ceuta and Melilla, on the

basis of its perceived historical rights there. In the same vein, Portugal desperately

tried to cling on its colonial enclaves in India, the most famous of them being Goa,

until the Indian army made short shrift of the Portuguese colonial garrison in

December 1961.14 In almost all these cases, one can see the same pattern repeating

itself: pursuit of perceived historical rights enjoys enormous domestic legitimacy, but

the so-called international community has remained by and large undecided.15

Origin

Origin is a very special and fairly rare source of historical rights. A group, ethnic or

political (e.g. a ruling dynasty), may trace its origin from a certain territory, later

abandoned for various reasons. This origin can be construed as generating a historical

right of that group over that territory, namely a right to return there and assume

political control over it.

Ever since “the return of the Heraclids”, i.e. the invasion of the Dorian Greeks

on southern Greece circa 1100 BC16 such movements, though few and far between,

13
Lawrence Freedman, “The War of the Falkland Islands, 1982”, Foreign Affairs, vol. 61, no. 1
(Fall 1982): 196-210.
14
For a contemporary account of the Indian invasion of Goa that also describes the quixotic
Portuguese attempts to recover the landlocked Indian enclaves of Dadra and Nagar Haveli, see
Margaret W. Fisher, “Goa in Wider Perspective”, Asian Survey, vol. 2, no. 2 (April 1962): 3-10.
15
Goa and the other Portuguese enclaves in India are a notable exception, in the sense that their
incorporation into India has been internationally accepted for decades. Still, at the time of those events
there was no such international consensus; see Fisher, “Goa in Wider Perspective”.
16
The Dorian Greeks were supposedly descendants of the mythical demigod Hercules.

12
have commonly created upheaval, not least due to the powerful emotions they are

associated with.

The return of formerly enslaved African-Americans to their continent of origin

and the foundation of Liberia on African soil in the nineteenth century is a case in

point. The newcomers immediately imposed themselves as the dominant elite,

separating themselves from and suppressing the locals – a situation that lasted until

1980.17

The most well-known example of forceful claim of perceived historical rights

based on origin is the return of the Jews to Palestine. The Jews longed for centuries to

return to their place of origin and felt perfectly entitled to assume political control of

Palestine. Of course the Zionist slogan “for a people without a land, a land without a

people” deliberately obscured the existence of the Palestinian Arabs, who in the

meantime had acquired their own historical rights over Palestine. The whole world

has been witness to the bitterness of a conflict that pits against one another two kinds

of historical rights, namely those based on origin versus those based on ethnicity.

Incidentally, judging from the broad international support for a two-state solution of

the Palestinian Question, both sides’ historical rights have been endowed with

international legitimacy.

Proximity

Proximity is not a generator but an enabler of historical rights. It stands to reason that

one should first come close to a territory, ideally next to it, and only then begin to try

to realize one’s perceived historical rights over that territory. For instance, the Iberian

Reconquista was a very gradual process; it took the Spaniards seven hundred years

and the Portuguese more than five hundred, with many ups and downs, to reverse the

17
Ryszard Kapuściński, The Shadow of the Sun (New York – Toronto: Alfred A. Knopf, 2001),
pp. 213-19.

13
Muslim conquest of the Iberian Peninsula. More recently, from 1832 to 1922, Greece

kept asserting its perceived historical rights over one Ottoman province after another,

leapfrogging from the southernmost tip of the Balkan Peninsula all the way to the

entrances to Ankara and managing to claim Cyprus in the process.

The obvious counterexample proving that proximity is not a necessary enabler

of historical rights is of course the Falklands/Malvinas war. Although territories

mutually accessible by sea can in a sense be considered “adjacent”, a distance of

12.500 Km from the United Kingdom and 5.500 Km from the nearest British base (in

Ascension Island) made the islands a very faraway land as far as the British were

concerned. Still, the Falklands/Malvinas war is probably an exceptional case,

triggered more than anything by the Argentine decision to resort to force. A major

reason why the former metropolises have not attempted to reverse decolonization

wherever it has taken place is that most of the former colonies are simply too far

away.

This concludes our discussion of the various pillars that historical rights can be

claimed to rest upon. We shall now attempt to reach some conclusions as to their

relative impact on the legitimacy of those perceived rights, both internationally and

domestically.

Conclusion: historical rights and legitimacy

One thing the above analysis has shown is that there is no guarantee of international

goodwill when one is pursuing perceived historical rights. Sheer national interests

will likely trump historical arguments, however plausible the latter may be. However,

public opinion in third countries may conceivably be swayed by arguments of this

kind and occasionally influence government policy. This is a major reason why one

has to seek the elusive international legitimacy of one’s cause.

14
 It seems that the best guarantor of international legitimacy for one’s perceived

historical rights over a territory is a strong ethnic presence coupled with consistent,

consensual rule at some point in history. This is what arguably accounts for the

overwhelming international legitimacy of the concept of a Jewish state in Palestine

(though its actual borders are disputed), or of the “one China” concept, namely the

idea that China and Taiwan should eventually be unified (though there is no

consensus on the actual timing, method and terms of unification). To be sure, even

this may not prove enough, as shown by Russia’s inability to get the rest of the world

to recognize its annexation of Crimea; but it is about the best one can do in normal

circumstances.

The degree of the three aforementioned elements may vary: the ethnic

presence can range from Kosovo-Albanian proportions to a mere sizeable minority

which achieves the occasional local majority; the consistency and the consensus of the

rule may also range from very high to fair; even the very concept of the rule may

range from full sovereignty to lesser degrees of political control. International

legitimacy could also vary accordingly, though there is clearly no guarantee for that.

The above analysis also showed that, in contrast to the intractability of

international legitimacy regarding perceived historical rights, domestic legitimacy is

far easier to achieve. Still, domestic legitimacy does not necessarily translate into

forceful action; it may merely translate into a latent wish to realize the perceived

historical rights at some undefined moment in the future.

In the case of Western/Moroccan Sahara domestic legitimacy did lead to

forceful action: Morocco has emerged victorious in a war against the Polisario Front

and is currently controlling about 80 percent of the territory, leaving the remote

border areas as a buffer zone. It is high time we applied to that case the conceptual

15
tools developed in this section. These tools may not be as sharp as one would wish.

However, it is evident that in the realm of historical rights one needs a compass rather

than a chisel or a drill, and a compass is arguably at hand.

3. Historical rights in Western/Moroccan Sahara

The Western/Moroccan Sahara conflict has many aspects, touches upon a number of

political issues and has broader international ramifications.18 Still, historical rights are

at the heart of the conflict, at least as far as the Moroccan side is concerned, and in the

present paper we shall confine ourselves to an analysis of these perceived rights. In

the first part of this section we will examine why Morocco believes it has historical

rights over the area. In the second part we will deal with the perceived domestic and

international legitimacy of those rights.

The generators of perceived historical rights

To start with, it has to be pointed out that one of the three pillars of historical rights

analyzed above, namely ethnicity, is virtually absent from the conflict. This is

because there are no meaningful ethnic differences between the inhabitants of

Morocco proper and those of Western/Moroccan Sahara. Ever since the advent of

Islam in the Maghreb at the late seventh century, the ethnic composition of that region

has largely been an amalgam of Arabs and Berbers.19 Morocco proper and

Western/Moroccan Sahara are no exception.20 Arab migration into the

Western/Moroccan Sahara began at least at the time of the Islamic conquest and

18
For an analysis, see Constantinos Koliopoulos, “The Western Sahara conflict: Security
implications and a possible way out”, in Grigorios Tsaltas, Eirini Cheila, Constantinos Koliopoulos
(eds.), Sécurité & Coopération en Méditerranée: Défis & Opportunités – Security & Cooperation in the
Mediterranean: Challenges & Opportunities (Athens: Piotita, 2013), pp. 27-44.
19
Ibn Khaldûn, The Muqaddimah: An Introduction to History [transl. Franz Rosenthal, ed. and
abr. by N. J. Dawood] (Princeton, NJ: Princeton University Press, 1967), pp. 7-8.
20
Incidentally, in both areas one can find obvious sub-Saharan ethnic influences, chief among
them being the Haratine. The Haratine are a black, Arabic-speaking indigenous group living in south
Morocco proper and also in Western/Moroccan Sahara and Mauritania; see Thomas K. Park, Historical
Dictionary of Morocco, new edition (Lanham, MD & London: The Scarecrow Press, 1996), pp. 43, 64-
5, 83-4, 187, 270.

16
intensified by the era of the Almohad dynasty (circa 1147-1269).21 Nevertheless, as

in Morocco proper, the Berber identity does survive in Western/Moroccan Sahara and,

although Arabic has conclusively won the linguistic battle in the area, the Berber

Amazigh language is still spoken by some tribes alongside Arabic.22

The point to make is that, ethnically speaking, there is no separate Sahrawi

nation. Throughout the Maghreb and especially in rural areas the main socio-political

point of reference has traditionally been the tribe. The Western/Moroccan Sahara

being basically a desert, survival outside a tribe was impossible, hence tribal

affiliations remained very strong for centuries. Recently the advent of urbanization

has somewhat changed that. According to Professor Ahmed Herzenni, whose

knowledge and understanding of Western/Moroccan Sahara is hard to surpass, the

current socio-political system of the area can be described as “semi-tribal”; the tribes

are no longer the sole point of reference, but on the other hand they will not wither

away and will continue to play an important socio-political role.23

Although there is no Sahrawi nation, the specific geographical, social and

political milieu of the area has created a Sahrawi cultural identity. 24 Still, it must be

stressed that the Sahrawi cultural identity is not confined to the borders of

Western/Moroccan Sahara but extends to areas of Morocco proper, Mauritania,

21
Ahmed Bouzidi, “Moroccan Roots of the Sahara Tribes: Historical Process and the Bond of
Allegiance”, in Abdalhak Azzouzi (ed.), Moroccan Yearbook of Strategy and International Relations,
2013 (Paris: L’Harmattan, 2013), pp. 440-3.
22
See, for instance, Mohamed Dahmane, “Social Life in the Southern Provinces”, in Azzouzi
(ed.), Moroccan Yearbook of Strategy and International Relations, 2013, p. 419.
23
Personal communication, April 6, 2014.
24
See, among others, Mohamed Cherkaoui, Morocco and the Sahara: Social Bonds and
Geopolitical Issues, second edition (Oxford: The Bardwell Press, 2007), pp. 67-176; Dahmane, “Social
Life in the Southern Provinces”, pp. 417-34. A salient characteristic of the Sahrawi culture is the
exalted position of women.

17
Algeria, and even the Azawad region of Mali. This is both a matter of nomadic

movements and tribal relationships that cut across state borders.25

In view of the above, Polisario cannot really base its claims of independent

statehood on ethnic diversity, and Morocco does not base its claims over

Western/Moroccan Sahara on ethnic kinship. Instead, Morocco invokes historical

rights based on its centuries-old consensual rule of that territory.

These rights are weaved around the concept of the oath of allegiance or

bay‘ah. The celebrated medieval scholar Ibn Khaldûn defines the oath of allegiance

as

a contract to render obedience. It is as though the person who

renders the oath of allegiance made a contract with his amir, to

the effect that he surrenders supervision of his own affairs and

those of the Muslims to him and that he will not contest his

authority and that he will obey him by (executing) all the

duties with which he might be charged, whether agreeable or

disagreeable.26

Obviously, this is a principle of political organization different from the one of

territorial sovereignty. Whereas sovereignty is a matter of drawing exact

geographical limits of a realm, the bay‘ah is a matter of moral authority over a

community, irrespective of whether this community resides within or beyond a

supposed territorial border. The corollary is that whereas in territorial states it is

harder to argue that territorial expansion (or contraction) is legitimate, basing one’s

rule on community allegiance may well lead to expansion or contraction of the area

25
Abdelhamid El Ouali, Saharan Conflict: Towards Territorial Autonomy as a Right to
Democratic Self-Determination (London: Stacey International, 2008), p. 57; Dahmane, “Social Life in
the Southern Provinces”, pp. 417-30; Bouzidi, “Moroccan Roots of the Sahara Tribes”, pp. 435-9.
26
Ibn Khaldûn, The Muqaddimah, p. 166.

18
under political control.27 One may argue the respective merits and drawbacks of the

two systems. At any rate, reflecting the triumph of the West over the rest of the

world, contemporary international law is based on the concept of sovereignty.

Nevertheless, the bay‘ah has for centuries been the organizing principle in vast areas

of the world and can be perceived as having created historical rights in the process. 28

As far as the Moroccans are concerned, this is definitely the case with regard to the

Western/Moroccan Sahara; the Sahrawi tribes have been consistently rendering the

bay‘ah to the sultans (nowadays kings) of Morocco, hence the Moroccan historical

rights over that territory.

Some sources might give the impression that this bay‘ah was an isolated act of

certain Sahrawi sheikhs who, hard-pressed by the European advance to the area

during the late nineteenth century, sought succor from the Moroccan sultan – the only

internationally recognized non-European independent ruler in Northwest Africa.29

This was not the case. The bay‘ah was a centuries-old practice connecting the

Western/Moroccan Sahara with the Moroccan central authority or Makhzan.

This bond was first created by the Almoravid dynasty (circa 1056-1147), itself

of Saharan origin (see below). The Almoravids, a product of a remarkable social-

engineering project based on refined Islamic teaching in the western extremities of the

Sahara desert,30 established themselves in Morocco and from their capital at

Marrakech came to rule an empire that at its height comprised present-day Mauritania,

Western/Moroccan Sahara, Morocco proper, northwest Algeria and the greater part of

27
Park, Historical Dictionary of Morocco, pp. 4-5.
28
The legal arguments for the connection between bay‘ah and sovereignty have been raging at
least since 1974, when the UN General Assembly asked an advisory opinion from the International
Court of Justice on the legal status that the then Spanish Sahara had had at the time of the Spanish
colonization; see Koliopoulos, “The Western Sahara conflict”, pp. 28-9 and the sources cited therein.
29
Cf. C. R. Pennell, Morocco since 1830: A History (London: Hurst, 2000), pp. 102, 114-5, 126-
7.
30
Ronald A. Messier, The Almoravids and the Meanings of Jihad (Santa Barbara, CA: Praeger,
2010).

19
the Iberian Peninsula.31 In the process, the Almoravids obtained the allegiance of the

Sahrawi tribes.32

The next link in the chain was the Almohad dynasty. Though their rule did

not extend to Mauritania, there is evidence that they did control at least parts of the

Western/Moroccan Sahara.33 It should be remembered that the Almohads originated

from the Atlas Mountains and thus had no connection, tribal or other, with

Western/Moroccan Sahara.34 Thus, if they indeed received the bay‘ah from the

Sahrawis, this might be of importance.

In the next few centuries things were not so clear-cut, at least in the present

author’s opinion. The next evidence-backed instance of a Moroccan dynasty

receiving the bay‘ah from the Sahrawis was that of the Sa’di sultan Ahmad al-Mansur

(1578-1603), who was assisted by the Sahrawis in his conquests in present-day Mali

(1578-91).35 This is also quite important, because by that time Morocco crystallized

as a political entity, managing to retain its independence from both the Ottomans and

the Europeans. In other words, one can claim definite historical links between what is

presently known as Morocco and what is presently known as Western/Moroccan

Sahara.

After that, the pledge of Sahrawi allegiance to the sultans of Morocco becomes

fairly consistent, despite long distances and lengthy periods of relative anarchy both in

Morocco proper and in Western/Moroccan Sahara. In 1678 the Alawi sultan Mulay

Ismail (1672-1727) visited the Sahara region as far as the borders of present-day Mali

31
Park, Historical Dictionary of Morocco, p. 242.
32
Bouzidi, “Moroccan Roots of the Sahara Tribes”, pp. 445-6.
33
Bouzidi, “Moroccan Roots of the Sahara Tribes”, 446-7.
34
Allen J. Fromherz, The Almohads: The Rise of an Islamic Empire (London – New York: I.B.
Tauris, 2010).
35
Bouzidi, “Moroccan Roots of the Sahara Tribes”, p. 448.

20
to receive the bay‘ah and consolidate political control.36 In 1757, following thirty

years of instability since the death of Mulay Ismail, the Sahrawi notables pledged

allegiance to the newly enthroned sultan Sidi Mohammed Ibn Abdallah (1757-

1790).37

The process continued throughout the nineteenth century despite the obvious

weakening of the Makhzan due to increasing European pressure.38 It did not cease

even after Morocco lost its independence in 1912.39 This demonstrates that the

Sahrawi bay‘ah to the Moroccan sultans was consensual. Ibn Khaldûn states

disapprovingly that “people were forced to render the oath of allegiance to anybody

who seized power”,40 but in the case of Western/Moroccan Sahara the remoteness of

the area and the general plight of the Makhzan ruled out any coercion. Simply put,

the Sahrawis wanted to be and remain subjects of the Moroccan sultan. This could be

because they deplored anarchy,41 because they considered themselves bound by

religion to render the bay‘ah to someone,42 because they wanted support against

European incursions,43 or for any other practical or metaphysical reasons, but the fact

remains that they consented to Moroccan rule. The consensus was reciprocal, as

36
Bouzidi, “Moroccan Roots of the Sahara Tribes”, pp. 448-9.
37
Bouzidi, “Moroccan Roots of the Sahara Tribes”, pp. 449-50.
38
Pennell, Morocco since 1830, pp. 102, 114-5, 126-7; Mohamed Dahman, “Saharaoui Society
through Jurisprudence Cases”, in Azzouzi (ed.), Moroccan Yearbook of Strategy and International
Relations, 2013, p. 401-2; Bouzidi, “Moroccan Roots of the Sahara Tribes”, pp. 454-7.
39
Qassim al-Hussaini, “The Historical Dimension of the Moroccan Sahara through the Rihla
(Travel) of Ma’ al-Aynayn”, in Azzouzi (ed.), Moroccan Yearbook of Strategy and International
Relations, 2013, pp. 411-15; Abbas al-Jirari, “The Role of the Ulema of the Moroccan Sahara in
Consolidating National Unity”, in Azzouzi (ed.), Moroccan Yearbook of Strategy and International
Relations, 2013, p. 473.
40
Ibn Khaldûn, The Muqaddimah, p. 155.
41
Ahmed Chikhi, “The Sufi Heritage in the Sahara: A Component of Diversity and Unity in
Hassani Culture”, in Azzouzi (ed.), Moroccan Yearbook of Strategy and International Relations, 2013,
pp. 372-3; Dahman, “Saharaoui Society through Jurisprudence Cases”, p. 382.
42
Bouzidi, “Moroccan Roots of the Sahara Tribes”, p. 448. As the aforementioned analysis of
Ibn Khaldûn makes clear, the bay‘ah has always had a strong religious content. The descent of both
the Sa’di and the Alawi dynasties from the Prophet Muhammad has obviously been an asset in this
respect.
43
Pennell, Morocco since 1830, pp. 102, 126-7; al-Jirari, “The Role of the Ulema of the
Moroccan Sahara in Consolidating National Unity”, p. 471.

21
demonstrated by the fact that the Moroccan sultans were maintaining an official

correspondence with the Sahrawi tribal sheikhs and involved them in decision-making

when the opportunity arose.44 After Morocco regained its independence in 1956, and

with the Spanish still in Sahara, the Sahrawis kept rendering the bay‘ah to the

Moroccan kings; the last such instance, and a highly publicized one, was on 3

November 1975, when Khatri Ould Sidi Said Joumani, president of the Sahrawi tribal

council (Jemaa), rendered the bay‘ah to king Hassan II. The tradition continues to

this day, with various socio-political groups of the Western/Moroccan Sahara (tribal

sheiks, religious leaders, elected representatives, etc.) rendering the bay‘ah to the king

of Morocco.

All this constitutes the foundation of the Moroccans’ belief in their historical

rights over Western/Moroccan Sahara. Apart from that, one might occasionally come

across the issue of origin as a generator of historical rights. Thus, one might be told,

as the author was told by Sahrawi sheikhs at Laayoune in April 2014, that three royal

Moroccan dynasties, namely the Almoravids, the Sa’dis and the currently ruling

Alawis, have originated from the Sahara; in this sense, the incorporation of

Western/Moroccan Sahara to Morocco is merely the return of a dynasty to its

birthplace. This is technically correct, in the sense that all these dynasties (plus the

Marinids – circa 1258-1420) had a connection with the Sahara desert. However, none

of the three can claim to have originated from the present-day Western/Moroccan

Sahara: the Almoravids are commonly associated with Mauritania, whereas the Sa’dis

and the Alawis trace their origins in the present-day Draa-Tafilalelt region, in

southeast Morocco proper.

44
Hassan Khattabi, “The Moroccan Sahara Question: A Nation’s March for the Completion of
the National Territorial Unity”, in Azzouzi (ed.), Moroccan Yearbook of Strategy and International
Relations, 2013, p. 165; al-Hussaini, “The Historical Dimension of the Moroccan Sahara through the
Rihla (Travel) of Ma’ al-Aynayn”, p. 413.

22
 Before concluding, a brief note on the historical-rights enabler of adjacency

and its application to the case of Western/Moroccan Sahara. That territory and

Morocco proper are, of course, adjacent. However, the elongated shape of both these

lands means that the distances involved are considerable (about 2.700 Km from the

northeastern tip of Morocco proper to the southwestern tip of Western/Moroccan

Sahara) and the Sahara desert has always been a formidable barrier to communication.

Still, modern transport and communications technology has gone a long way to

mitigating these obstacles, making geographical adjacency more of a reality than in

the past.

The issue of legitimacy

The incorporation of Western/Moroccan Sahara to Morocco has always enjoyed

overwhelming legitimacy among the Moroccans. Already in 1957, the year after

Morocco recovered its independence, Moroccan irregular forces attacked the Spanish

in Sidi Ifni and Spanish Sahara. Faced with Spanish defeat, the French quickly

stepped in to redress the balance. The war formally ended in April 1958 with Spain

ceding to Morocco some territory around Tarfaya (immediately to the north of

present-day Western/Moroccan Sahara), but guerrilla forces kept roaming in the

desert until 1960 and were finally incorporated in the Moroccan army only in 1962.45

The Green March (6 November 1975), in which the Moroccan king Hassan II

marched just inside Spanish Sahara at the head of more than 300.000 unarmed

Moroccans, is solemnly celebrated every year in Morocco. Finally, in 6 November

2014, while this paper was being completed, king Mohammed VI delivered a very

tough anniversary speech in which he declared, among others, that “Morocco will

45
I. William Zartman, “The Politics of Boundaries in North and West Africa”, The Journal of
Modern African Studies, vol. 3, no. 2 (August 1965): 164; El Ouali, Saharan Conflict, pp. 84-5.

23
remain in its Sahara, and the Sahara will remain part of Morocco, until the end of

time”.46

In the Western/Moroccan Sahara itself, life is more or less normal nowadays.

The author has witnessed hundreds of people strolling in downtown Laayoune at

about 10.00 pm., hundreds of people camping and swimming at the shores of the

Atlantic near the Laayoune port, children hitchhiking at the Laayoune – Laayoune

Port highway, no military personnel at the Laayoune airport, and fewer policemen in

the greater Laayoune area than in downtown Athens; he cannot be convinced that

Western/Moroccan Sahara is under military occupation. The Sahrawi sheikhs profess

their loyalty to the king of Morocco and declare that “Sahara is Moroccan”.47 As to

the local people, while some of them publicly complain about the slow pace of the

democratic reforms in Morocco,48 they still send their children in droves to Morocco-

run schools in Sahara.49 Thus, one can reasonably assume that Moroccan rule does

not lack domestic legitimacy in Western/Moroccan Sahara.

On the other hand, the Moroccan cause has not fared very well in terms of

international legitimacy. With the exception of relatively few experts, the Moroccan

point of view is barely known internationally, let alone approved of. The international

attitude toward Morocco re the Western/Moroccan Sahara issue ranges from the open

hostility of the African Union, through the cautious approach of the European Union,

to the tacit support of much of the Arab League, but no one has openly come out in

favor of Rabat with a de jure recognition of Moroccan sovereignty in the disputed

46
“HM The King Delivers Speech To The Nation On 39th Anniversary Of Green March”,
Agence Maroccaine de Presse, 06 November 2014, http://www.map.ma/en/discours-messages-sm-le-
roi/hm-king-delivers-speech-nation-39th-anniversary-green-march.
47
Author’s meeting with Western/Moroccan Sahara sheikhs, Laayoune, April 5, 2014. At least
one of those sheikhs was a former Polisario fighter.
48
Public discussion after author’s address at a Laayoune NGO named “Center for Strategic
Thinking and Defense of Democracy”, April 6, 2014. So much for Western/Moroccan Sahara being a
police state pure and simple.
49
Cherkaoui, Morocco and the Sahara, pp. 81-121.

24
area. In contrast, the Polisario has done clearly better in this respect, its self-styled

Sahrawi Arab Democratic Republic (SADR) being recognized by probably more than

forty UN members.50 Early victories and defeats in propaganda wars can be difficult

to reverse; since the early 1970s the Western/Moroccan Sahara issue has been framed

in terms of decolonization of a given territory, isolating it from its historical

background; hence Morocco has been facing an uphill struggle in its quest for

international legitimacy.51

4. Conclusion

The concept of historical rights is vague. It does not tell the whole story of an

international dispute, for it often leaves aside its legal aspects. But it is there. For

better or for worse, it is bound to retain its potency for the foreseeable future,

endowing territorial claims with domestic legitimacy and perhaps with international

legitimacy as well.

In the specific case of Western/Moroccan Sahara, the perceived historical

rights of Morocco could make all the political difference in the world. In the absence

of those rights, Morocco’s actions in the former Spanish Sahara are little more than

sheer aggression. In the context of those rights, Morocco’s actions can well be

considered legitimate attempts to restore a national integrity interrupted by Spanish

colonization.

50
It is quite difficult to come up with reliable data as to which states currently recognize the
SADR, especially since more than thirty states have revoked or frozen their recognition. The best the
author could come up with was http://www.worldstatesmen.org/SADR_relations.doc, a compilation of
unreliable resources (e.g. Wikipedia) that puts the states currently recognizing the SADR at forty four,
while also listing forty states that had formerly recognized it but not any more.
51
Greece has been facing a similar problem vis a vis the FYROM. The dispute over the latter’s
name has increasingly come to be regarded as whimsical Greek bullying of a weak neighbor. This
facile view ignores not only the historical background of the issue, but also the very real Greek security
concerns stemming from the revisionist territorial designs over the Greek province of Macedonia
associated with the invention of a non-existent “Macedonian” nation.

25