The Unique Origin and Features of SADR as a Non-Secessionist Parastate and a State-in-Exile

The “declarative” parastate of Western Sahara/SADR grew out of a derailed decolonization process. In the 1960s the United Nations (UN) listed the then-called Spanish Sahara as a non-self-governing territory and urged Spain to organize a referendum for self-determination. At the same time that the Polisario Front emerged in the early 1970s as an indigenous Sahrawi national liberation movement seeking independence from Spanish colonial rule, neighboring Morocco upgraded its claims to the territory by requesting an advisory opinion from the International Court of Justice (ICJ) on the legal status of its historical links with the Sahrawi tribes prior to Spanish colonization in the late 19th century. The ICJ’s conclusion issued in October 1975 found that there were indeed “legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara” but these “[did] not establish any tie of territorial sovereignty” which would overrule “the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.”Footnote ² Morocco defied this unfavorable—however mixed—legal opinion, as well as the uti possidetis principle ensuring the stability of borders during the decolonization of Africa, by invading Western Sahara through the so-called Green March of 350,000 civilians in November 1975. This move was “deplored” by the UN Security Council which “[called] upon Morocco to immediately withdraw from the Territory of Western Sahara all the participants in the march.”Footnote ³

Yet, in parallel, and in the very days when the dictator Francisco Franco was dying, the Spanish government ended up transferring the administration of the territory to Morocco and Mauritania in secret tripartite negotiations that led to the Madrid Accords. Morocco went on to occupy and annex the northern two-thirds of the land following the Spanish withdrawal in early 1976, while the Polisario Front initiated a guerrilla war against the Moroccan and Mauritanian armies, and around half of the indigenous Sahrawi population fled across the border to refugee camps near Tindouf, in south-western Algeria. This is where the SADR, the parastate examined here, took root as a state-in-exile that would thenceforth work as primarily extraterritorial in practice, a feature that further enhances its uniqueness—although it saw its formal proclamation and set its “temporary” capital in the oasis town of Bir Lehlou, in the eastern strip (about 25%) of Western Sahara proper controlled by the Polisario Front, with the aim to ensure a minimum degree of declarative statehood. The Mauritanian involvement in the war was short-lived, as in 1979 the country made peace with the Polisario Front and relinquished its share of the territory, which was to be appropriated also by Morocco. The intensity of armed combat started decreasing in the mid-1980s, after Morocco consolidated its military control over the annexed territory by erecting a military berm to isolate it from Polisario attacks. UN conflict resolution efforts resulted in a ceasefire and a Settlement Plan accepted by Morocco and the Polisario Front in 1991, which provided for a self-determination referendum for the Sahrawi people, but the implementation of this became stalled due to the parties’ insuperable disagreement about the electorate entitled to vote.

As a result of this historical background, today foreign occupation of (most of) the claimed land appears to be the key distinctive feature that sets Western Sahara/SADR apart from the majority of parastates in the world, depriving it of substantial territorial control and making it only comparable to Palestine. The UN General Assembly has characterized the presence of Morocco in the western 75% of Western Sahara as “occupation” on two separate occasions.Footnote ⁴ The SADR therefore appears as a self-proclaimed state dispossessed of its territory by an occupying state without title to sovereignty which exercises effective authority and control over it.Footnote ⁵ Interestingly for comparative purposes, four significant legal nuances emerge when contrasting the situations of Western Sahara and Palestine. First, contrary to the case of the Israeli occupation of Palestine, in Western Sahara occupation came hand in hand with straightforward annexation (full incorporation into the occupying state and administration as part of its territory) after the Moroccan two-stage takeover of most of the territory of the former Spanish colony in 1975–1976 and 1979–1980. Secondly, in Western Sahara occupation is superimposed on a protracted colonial status, or unfulfilled decolonization as a non-self-governing territory. This means that, when it comes to determining the international legal regime applicable here, there exists a duality between international humanitarian law including the law of occupation (IV Hague Convention of 1907, IV Geneva Convention of 1949 and 1st Additional Protocol) and decolonization law based on the right to self-determination (Articles 73–74 on non-self-governing territories of the Charter of the UN, plus the two UN human rights covenants of 1966) (see Saul Reference Saul2015). International lawyers tend to consider that these two statuses/situations are not mutually exclusive: “Western Sahara is also a non-self-governing territory, akin to colonies, but that does not change its status as occupied” (Wrange and Helaoui Reference Wrange and Helaoui2015, 40; see also Soroeta Liceras Reference Soroeta Liceras2016, 231; Kassoti Reference Kassoti2017a, 352; Kassoti Reference Kassoti2017b, 29; Soroeta Liceras Reference Soroeta Liceras2014). Yet, in practice, to date this duality has entailed a considerable deal of legal controversy and blurriness.

Thirdly, this is compounded by the fact that Western Sahara is the only territory on the UN list of non-self-governing territories for which there is no indication of an administering power—since, as put in a footnote, Spain has considered itself “exempt from any responsibility of any international nature in connection with the administration of the Territory” since February 1976.Footnote ⁶ A number of jurists argue that Spain remains the de jure administering power of Western Sahara (Kassoti Reference Kassoti2017b, 33) since the Madrid Accords violated Article 73 of the UN Charter and failed to be endorsed by the UN General Assembly. Such has been the position advocated by the African Union (AU) and its special envoy for Western Sahara Joachim Chissano since 2014 (Cembrero Reference Cembrero2014). By contrast, others contend that “given that the Western Sahara continues to be designated as a non-self-governing territory (…) by the UN, and remains primarily under Moroccan control, there is a strong argument that Morocco should be classified as the de facto administrator of the territory” (Torres-Spelliscy Reference Torres-Spelliscy, Boukhars and Roussellier2014, 236)—a category that does not make any legal sense according to proponents of the former position (Soroeta Liceras Reference Soroeta Liceras2016, 208–209). Fourthly and finally, a combination of this legal uncertainty and the politics of the conflict have made key international actors reluctant to apply the term “occupation” to the situation of Western Sahara. This is the case of the world’s most powerful states and even the UN, where the existence of such taboo was made evident by Morocco’s frenzied reaction after Secretary-General Ban Ki-moon exceptionally used the word “occupation” in March 2016 (Reuters Reference Reuters2016). The political peripherality and irrelevancy of the conflict for Western powers have certainly not contributed to dispelling all these ambiguities.

A Context of Frozen Conflict and Blocked Path to Sovereignty: Similarities with Other Parastates

Even though the historical point of departure and the legal features of Western Sahara/SADR as a non-secessionist parastate are fairly unique, its current political context bears a striking number of parallels with that of other faraway and dissimilar, secessionist cases addressed in this special issue (see Rossi this volume). The first is that similarly to its counterparts in the post-communist space and Northern Cyprus, the parastate of Western Sahara exists within a frozen conflict; that is, one in which “the violence stopped, but the underlying interests of the formerly warring parties have neither been abated nor addressed” (Perry Reference Perry2009, 36). A universal definition of frozen conflict that strips the concept of the post-Soviet bias with which it originally became mainstream in the 1990s logically includes this case, where open armed confrontation has been absent for a relatively extended period of time but no proper resolution or peace settlement has been achieved to the satisfaction of the parties (Chávez Fregoso and Živković Reference Fregoso and Živković2012; Fernández-Molina Reference Fernández-Molina2019). Indeed, since the early 1990s, and even earlier, the conflict over Western Sahara pitting Morocco against the Polisario Front does not qualify as a war or armed conflict in international databases such as Correlates of War or the Uppsala Conflict Data Program (UCDP)/Peace Research Institute in Oslo (PRIO) Armed Conflict Database, as it does not meet the definitional requirement of sustained combat involving organized armed forces and resulting in a minimum of 1000 battle-related deaths per year (Fernández-Molina Reference Fernández-Molina, Ojeda-García, Fernández-Molina and Veguilla2017a, 12–13). However, as noted on the UCDP website, “the basic incompatibility between the parties—the status of the territory of Western Sahara—remains unresolved.”Footnote ⁷

Secondly, as elsewhere, the parastate’s stalemate has been reinforced by an ineffective internationally brokered peace settlement (Rossi this volume). Such is most conspicuously the case of the UN Settlement Plan that Morocco and the Polisario Front agreed to in 1991 at the time of their ceasefire declaration, which envisaged the holding of a referendum for self-determination for the Sahrawi people. This peace settlement had the in-built—maybe inevitable—flaw of being conceived of as a step-by-step process rather than a comprehensive final agreement, and therefore being conditional on the voluntary cooperation of the two parties (Jensen Reference Jensen2012, 33), which would subsequently reveal itself to be elusive in the absence of international enforcement or compelling pressure. The implementation of the plan was wrecked due to the parties’ irreconcilable claims about the referendum electorate and how to determine which Sahrawis should be entitled to vote—jus soli vs. jus sanguinis—on which there was no prior deal. After trying several technical fixes that were useless for curbing the politicization of the voter identification process, in the early 2000s the UN peace-making efforts moved into a second stage that prioritized a series of mixed “political solutions:” the so-called Baker Plans I (2001) and II (2003), which involved a combination of a temporary autonomy phase (under Moroccan sovereignty) and a referendum to determine the final status of the disputed Western Sahara territory. Both of these plans were unsuccessful as well, with each of them failing to achieve the consent of one of the parties—the Polisario Front in 2001 and Morocco in 2003. This led the whole architecture of the UN peace brokering to virtually collapse in 2007, when the UN Security Council called on the parties to enter into “negotiations without preconditions” (Theofilopoulou Reference Theofilopoulou2010), thereby bringing the process back to square one. The decolonization framing of the conflict and the UN Settlement Plan including the self-determination referendum have remained fully valid to date at the legal level, in any case.

Thirdly, as in the case of other parastates, the indefinite presence of international peacekeeping forces on the ground has also protracted conflict resolution (Rossi this volume). The UN Mission for the Referendum in Western Sahara (MINURSO), which was established in 1991 as part of the measures to implement the Settlement Plan and with the specific task of organizing the self-determination referendum, as per its name, remains deployed as one of the oldest active UN peacekeeping missions in the world. Its mandate has continued to be annually renewed by the Security Council even after the voter identification process collapsed and as it became clear that Morocco was disengaging from the Settlement Plan roadmap in the early years of King Mohammed VI’s reign (Fernández-Molina Reference Fernández-Molina2016, 49). With the referendum route blocked, MINURSO’s functions became restricted to verifying the compliance of the ceasefire by both parties, providing logistical support for confidence measures (such as family visits) organized by the Office of the UN High Commissioner for Refugees (UNHCR), and monitoring the demining work carried out on both sides of the berm: in the areas under Moroccan rule and the Polisario-controlled strip of Western Sahara that Sahrawi nationalists refer to as the “liberated territory” (interview with MINURSO senior political advisor, Laayoune, June 10, 2013).

The possibility of admitting the UN’s failure to solve the conflict and terminating MINURSO has been raised several times since Secretary-General Kofi Annan first put it on the table in 2002, but has never materialized. Since the end of the last decade, the role of MINURSO has become increasingly politicized as a result of the initiative, staunchly opposed by Morocco, to extend its mandate to human rights monitoring, bringing it into line with those of the rest of post-Cold War UN peacekeeping missions (Capella Soler Reference Capella Soler2011; Khakee Reference Khakee2014). This demand became the main bone of contention in UN Security Council debates on Western Sahara from 2009 to 2015, provoking a series of unprecedented diplomatic rows between Morocco and the UN as well as the US—as the administration of Barack Obama supported it (Fernández-Molina Reference Fernández-Molina2016, 68–72). Tensions with the UN would reach their peak in March 2016, when Morocco expelled the civilian staff of MINURSO to protest Secretary-General Ban Ki-moon’s one-off reference to the “occupation” of Western Sahara (Reuters Reference Reuters2016).

Fourthly, another structural condition shared with other parastates is that neither the diplomatic impasse over the Western Sahara conflict nor the disputed status of the SADR can be understood without the role of global powers in prolonging the status quo—by action and mostly by omission. The key international players involved in this affair during the Cold War (see Zoubir and Volman Reference Zoubir and Volman1993) and post-Cold War eras have been four of the five permanent members of the UN Security Council—France, the USA, the United Kingdom, and Russia—plus Spain as the former colonial power, which together form the so-called Group of Friends of Western Sahara at the UN. Altogether, these states have contributed to maintaining the status quo mainly by preventing the UN from moving from a consensus-based and nonbinding settlement approach under Chapter VI of the UN Charter to an enforced solution under Chapter VII. France has been the most active and consistent in its overt diplomatic support for Morocco’s sovereignty claims over Western Sahara, including the defense of Rabat’s positions, as if by delegation, within international fora such as the UN and the EU. Since the turn of the millennium, this unfailing postcolonial alliance has proved to be a lifeline for Morocco when this country abandoned the UN Settlement Plan route to try and promote the idea of autonomy under Moroccan sovereignty for the disputed territory, and following its awkward rejection of the 2003 Baker Plan II, whose endorsement by the UN Security Council was eventually watered down to rule out any coercive solution against Rabat’s will. France also subsequently helped to block all attempts to extend MINURSO’s mandate to human rights monitoring, remaining in general the major sponsor state upholding Morocco’s claims (Fernández-Molina Reference Fernández-Molina2016, 165, 168).

Meanwhile, Spain has pursued a difficult balancing act on this conflict, being subject to competing pressures from both sides due to its historical association with the Sahrawi people, as well as its special influence on the matter among part of the international community. However in practice, even though the official position has remained one of “active neutrality” and backing for UN initiatives, from the moment of colonial disengagement and more distinctly since the end of a deep bilateral crisis with Morocco in 2001–2003, the Spanish governments’ actual preferences have subtly leaned toward virtually converging with the French ones. By extension, a combination of the French-Spanish influence, wider intergovernmental discrepancies among member states, and the low profile of this frozen conflict has led the EU to minimize its engagement with the Western Sahara issue, though betraying some pro-Moroccan bias in practice. The EU’s official self-limitation and minimal position of support for UN peace-making efforts has coexisted with a clear-cut asymmetry in the contractual relations with the two conflict sides, lack of territorial differentiation within the bilateral economic cooperation deals with Morocco, silence about Western Sahara in the related political documents, and limited direct interaction with Sahrawi actors including the SADR (Fernández-Molina Reference Fernández-Molina, Bouris and Schumacher2017b, 221–225; see also Bouris and Fernández-Molina Reference Bouris and Fernández-Molina2018).

On the other side of the Atlantic, the USA has largely maintained an “unambiguously pro-Moroccan” stance on Western Sahara in terms of diplomatic and military support since 1975 (Mundy Reference Mundy2006, 300); however, it has fallen short of formally recognizing Moroccan sovereignty over the annexed territory as actively lobbied for by Rabat. This has translated into more robust territorial differentiation practices than the EU’s, which materialized in the explicit exclusion of the Western Sahara territory from the bilateral US-Morocco free trade agreement signed in 2004.Footnote ⁸ At the same time, the boldest attempts to unblock or to at least breathe new ideas into the failing UN peace-making process must be all credited to the US diplomatic impulse and influence. Such is the case of the Baker Plans I and II (Zoubir and Benabdallah-Gambier Reference Zoubir and Benabdallah-Gambier2005, 186–187), and the more recent draft UN Security Council resolution envisaging the extension of MINURSO’s mandate to human rights monitoring in 2013—nevertheless eventually withdrawn. What was lacking in any event, as became obvious following Morocco’s rejection of the Baker Plan II in 2003 and during the Morocco-US diplomatic crisis ten years later, was any real political will to impose a conflict solution on this ally however spoiling its behavior might turn out to be. The only constructive outcome of the 2013 row was a secret commitment to improve the human rights situation in the Western Sahara territory annexed by Morocco—putting an end to military trials of civilians, allowing visits by the Office of the UN High Commissioner for Human Rights (OHCHR), and legalizing pro-independence Sahrawi associations—made by King Mohammed VI during his first meeting with President Barack Obama in Washington in November 2013 (Fernández-Molina Reference Fernández-Molina2016, 204, 207, 209).

Fifthly, as in other cases, while global powers have laid the conditions for conflict freezing and irresolution, what has specifically ensured the resilience of the SADR as a parastate has been its reliance on support from an external sponsor or patron providing essential political, military, economic, and diplomatic assistance (Rossi this volume). Such has been the role played in this instance by Algeria, the Polisario Front and SADR’s most vital and consistent foreign backer, and the host of the Sahrawi refugee camps near Tindouf where this parastate has its headquarters. A notable difference with the external patrons of most of the parastates examined in this special issue is that Algeria is not powerful enough to be considered as a global power and acts just a regional one; Turkey’s sponsorship of Northern Cyprus and Armenia’s backing for Nagorno-Karabakh may be the only comparable cases. Algeria’s historical motivations for taking on this financial and security burden range from identity, normative and ideological grounds—the anticolonial and third-world solidarity integral to Algerian nationalism—to geopolitical and material self-interest—curbing Morocco’s menacing territorial expansion along the country’s southwestern flank or gaining access to the Atlantic for its energy exports (Thieux Reference Thieux, Ojeda-García, Fernández-Molina and Veguilla2017). Likewise, the extent to which Algeria’s involvement has been a necessary condition for the survival of the SADR as a parastate, absent which the Sahrawi nationalist project would have languished long ago, remains politically contentious. Proponents of pro-Moroccan positions argue that Western Sahara is first and foremost a regional conflict driven by pre-existing postcolonial territorial and hegemonic rivalry between Morocco and Algeria, which would be the two real conflict parties, with Sahrawi political agency occupying a secondary place if at all. A more nuanced assessment contends that, although Algeria certainly exerts an unparalleled influence on the Polisario Front/SADR, this falls short of amounting to outright puppet-like control or veto power (Mundy Reference Mundy2010).

Sixthly and finally, Western Sahara shares with other parastates the stalemate created by its blocked path to sovereignty in every possible way. On one hand, the scenario that the occupying/annexing country Morocco recognizes the parastate’s independence, or accepts holding a self-determination referendum which paves the way toward full sovereignty following the East Timor model (Rossi this volume), has to be almost ruled out in the current circumstances. The only thinkable way to make this happen would be that the UN Security Council shifted its approach toward an enforced solution and/or global powers such as the US and France had the political will to put strong pressure on Morocco. On the other hand, the scenario of Western Sahara’s agreed incorporation to or unification with the Moroccan state as a highly autonomous region seems equally improbable due to ontological security issues on both sides. The SADR/Polisario Front leadership is unlikely to willingly accept that “it has more to gain as part of another country than going alone” (Rossi this volume). A negotiated settlement along these lines would amount to their committing political suicide, sacrificing popular legitimacy by admitting defeat after over 40 years of struggle for self-determination, and relinquishing the self-interested political benefits of the status quo, such as authority within the refugee camps and control over the “liberated territory”—plus individual material rents in some cases. These nearly existential fears may explain the intensifying threats of return to armed struggle made by the SADR/Polisario Front in 2007-2008, when the 2007 Moroccan Autonomy Plan for Western Sahara seemed to be getting the international community’s wind at its back and becoming inescapable (Fernández-Molina Reference Fernández-Molina2016, 65–66).

At the same time, and despite the strong diplomatic push for the Autonomy Plan it has maintained over the last decade, the Moroccan regime has also proven its reluctance to pay what would amount to a high price in terms of power-sharing and decentralized rule in order to enable a “political solution” for the Western Sahara conflict. This type of fear of peace is one of the plausible reasons for its earlier rejection of the Baker Plan II in 2003. Rabat’s spoiling behavior was puzzling for the UN and the US because the provisional power-sharing arrangement and the final referendum’s electorate envisaged by this plan were pretty similar to those of the Baker Plan I, keenly accepted by Morocco in 2001, and seen as rationally favorable to Moroccan interests—the electorate was broadly defined so as to include a large number of Moroccan/northerner settlers residing in Western Sahara who should in principle support integration into Morocco. In trying to explain the Moroccan authorities’ lack of self-confidence, it has been argued that they may have gotten scared that a victory by SADR/Polisario Front returnees in the elections to the provisional Western Sahara authority (Zunes and Mundy Reference Zunes2010, 230) would lead to their losing control over the territory during the transitional autonomy stage and the independence option prevailing in the final referendum (Hernando de Larramendi Reference Hernando de Larramendi, Zoubir and Amirah-Fernández2008, 191–192). Deeper down, their uneasiness with decentralized rule was also due to more structural factors such as the authoritarian and highly-centralized nature of the monarchical regime, and the uncertainty about the future role of the army (Fernández-Molina Reference Fernández-Molina2016, 57).

Some of the stumbling blocks related to center-periphery relations would become apparent in the wider context of the ambitious “advanced regionalization” process announced by Mohammed VI in 2010, whose legislative development and implementation were soon politically stalled and demoted (Ojeda-García and Suárez-Collado Reference Ojeda-García, Fernández-Molina and Veguilla2017), as well as during the sustained wave of political protest of regionalist and ethnic (Amazigh) character that has been going on in the northern region of the Rif since October 2016. As in the case of other parastates, Rabat’s domestic management of the Western Sahara issue (its governance over the annexed territory) has always been conditioned by the concern that the central government’s decision to award special status to one contested territory risks encouraging other restless communities in the country”.

An Internal Sovereignty Full of Small Print: Territory, Population, and Government

Against Western Sahara’s context of frozen conflict and a blocked path to sovereignty, this section examines the internal sovereignty of the SADR as a “declarative” parastate by referring to the first three of the four criteria for statehood established by the 1933 Montevideo Convention on the Rights and Duties of States: a permanent population, a defined territory, and a government. These essentially correspond, in Stephen D. Krasner’s distinction, to “Westphalian sovereignty”—“territoriality and the exclusion of external actors from domestic authority structures”—and “domestic sovereignty”—“the formal organization of political authority within the state and the ability of public authorities to exercise effective control within the borders of their own polity” (Krasner Reference Krasner1999, 20, 4). The fourth and more external criterion, that is, the capacity to enter into relations with the other states, will be addressed in the following section.

It has been argued that the SADR meets all of the Montevideo Convention conditions as: first, it rules over the Tindouf refugee camps where most of the indigenous Sahrawi population is claimed to live; second, it controls, through the Polisario Front, one fourth of the land of Western Sahara proper, the so-called “liberated territory,” where the SADR’s “temporary” capital is officially located; third, it has its own state-like governmental administration; and fourth, it maintains—or has maintained—international relations with around 80 states (Pinto Leite Reference Pinto Leite2015, 370). However, the reality is that the fulfillment of each of these conditions is only partial and qualified. The UN continues to consider Western Sahara a non-self-governing territory, while the SADR’s primarily extraterritorial nature makes it resemble more of a state-in-exile. Other elements affecting its statehood at the center of the debate are the relationship between ethnic and national identity—or the question of who is a Sahrawi—and the SADR’s capacity for self-governance or, as Wilson (Reference Wilson2016, 11) prefers, “governance-in-exile.”

In terms of territory, the piece of land recognized by international law and claimed by the Polisario Front/SADR as making up the state of Western Sahara is that of the colonial Spanish Sahara, which covers some 266,000 square kilometers between 27º40’N and 21º20’N latitude. Colonized beginning in 1884—although it did not come under full Spanish control until the 1930s—this largely desert land was inhabited by the Bidani, “white” Arab, Hassaniya-speaking nomads with a unique tribal organization (Barreñada Reference Barreñada, Ojeda-García, Fernández-Molina and Veguilla2017, 277–278, 291). As usual in colonial geographies, the Spanish Sahara’s borders did not totally correspond either to the entire space within which this nomad people had for centuries circulated or even to the Sahrawi population in a more restricted, contemporary sense, as some of this territory’s indigenous inhabitants would move into areas under French colonial control to the northeast, east and south—today’s Morocco, Algeria, and Mauritania. The colonial and postcolonial relationship between international borders and ethnic/tribal identities was further complicated in 1912, when a legally separate Spanish Protectorate was established in southern Morocco (Barreñada Reference Barreñada, Ojeda-García, Fernández-Molina and Veguilla2017, 278; San Martín Reference San Martín2010, 58).

From the point of view of international law, as argued above, today the territory of Western Sahara possesses a dual identity: it constitutes a non-self-governing territory included in the UN list thereof since 1963 and it has additionally become an occupied territory due to Morocco’s unlawful annexation of three-quarters of it in 1976/1979. The consequence of this anomalous lack of territorial control for the SADR’s statehood is that the parastate, being headquartered in the Tindouf refugee camps in Algeria, is largely extraterritorial in practice. Often described as a “refugee state” (Smith Reference Smith, Akram and Syring2014, 26) or a “tent state” (Isidoros Reference Isidoros2018), its primary area of subsidiary territorial control, where it exercises some de facto authority by delegation of the Algerian state, lies in the camps. This arguably provides the SADR with an extraterritorial form of what Krasner (Reference Krasner1999, 20) calls “Westphalian sovereignty,” “territoriality and the exclusion of external actors from domestic authority structures.” Non-interference is claimed in the camps, for instance, in order to prevent UNHCR from conducting a refugee population census there. There exist also practical elements of “interdependence sovereignty,” based on the control of the movement of people and goods through the camps’ borders and entrance checkpoints, and “domestic sovereignty,” associated with the monopoly of the use of violence and law enforcement by the Sahrawi National Police and National Gendarmerie within this space (Wilson Reference Wilson2016, 12; San Martín Reference San Martín2010, 130; see Krasner Reference Krasner1999, 3–25). All of this points to the idea that the SADR works first and foremost as a state-in-exile presenting parallels with other long-term expatriate governing authorities such as the Central Tibetan Administration in India (McConnell Reference McConnell2016) and formerly the Palestine Liberation Organization (PLO) in Jordan, Lebanon, and Tunisia. The Sahrawi case’s particularity, however, is that displacement is not limited to a national political elite or leadership—a government-in-exile—but also includes a significant civilian population (Wilson Reference Wilson2016, 10). Some have gone as far as to claim that, under these circumstances, “Sahrawis are no longer refugees but citizens in their own land” (James Firebrace cited in San Martín Reference San Martín2010, 119).

On the other hand, beyond the camps, there is another important qualification to the SADR’s extraterritoriality, which is crucial in terms of it fulfilling the requirements for declarative statehood. Since the early years of armed conflict, as mentioned above, the Polisario Front has maintained military control over an eastern strip of land (about 25%) of Western Sahara proper referred to as their “liberated territory.” Although long perceived as dangerous and largely uninhabited except for some nomads, the SADR’s de facto or “temporary” capital has always remained officially located in this area—in the oasis towns of Bir Lehlou and later Tifariti—and in recent years the SADR/Polisario Front have multiplied symbolic efforts to showcase and politically capitalize on their control over it. Between late 2007 and early 2008, an unprecedented decision was taken to hold the Polisario Front’s 12th congress in Tifariti, and plans were announced to establish the SADR parliament’s temporary premises there (Fernández-Molina Reference Fernández-Molina2016, 65–66). In 2011, the SADR government formally moved its headquarters to Tifariti. Moreover, in the past decade there has been official encouragement for (civilian) Sahrawi refugees to resettle from the camps to emerging urban developments in the “liberated territory” (Wilson Reference Wilson2016, 251), where the still mostly nomad population is estimated at 30,000 (Norwegian Refugee Council 2014, 4). The growing political emphasis on the control of this territory supports the argument made in this article that the SADR is better understood as a hybrid between a state-in-exile and a more typical parastate.

When it comes to the population of Western Sahara/SADR as a parastate, a number of qualifications must be likewise made. Firstly, as in other conflicts elsewhere, there is a discrepancy between ethnic and political understandings of who are the Sahrawis. Due to the historically nomadic nature of the indigenous Hassaniya-speaking Bidani tribes and the aforementioned mismatch between colonial borders and ethnic/tribal identities, ethnic Sahrawis inhabit a larger geographical area that spans southern Morocco, southwestern Algeria and northern Mauritania in addition to Western Sahara proper. By contrast, Sahrawi political identity and the Sahrawi nationalist movement—later embodied by the Polisario Front—are a relatively recent phenomenon that emerged in Western Sahara’s colonial territory, constructed under and in opposition to the Spanish rule (Barreñada Reference Barreñada, Ojeda-García, Fernández-Molina and Veguilla2017, 381; Barona Castañeda Reference Barona Castañeda2015, 3). Contrary to Morocco, and in absolute adherence to the uti possidetis principle, the Polisario Front/SADR unambiguously stuck from the outset to a political/national definition of Sahrawi identity (Isidoros Reference Isidoros, Ojeda-García, Fernández-Molina and Veguilla2017, 303, 309), which involves a self-limitation of the parastate’s population to Sahrawis native to Western Sahara proper and their descendants (Mundy Reference Mundy2007, 278).

Another demographic particularity is that since 1975-1976 Sahrawis indigenous to Western Sahara have been divided into three broad categories: those who fled as refugees to Tindouf, those who remained in the Moroccan-annexed territory, and those who have migrated elsewhere to become a diaspora mainly in Europe. Yet, the SADR as a parastate has endeavored to formally include all three population groups under its formal jurisdiction, as shown by the existence of a Ministry of the Occupied Territories and the Saharawi Community Abroad within its government, although the constituencies entitled to vote in the elections for the SADR’s legislative branch, the Sahrawi National Council, are limited to the refugee camps (Wilson Reference Wilson2016, 206–209). Representatives from the “occupied territories” and the diaspora have also effectively participated in the Polisario Front’s Popular General Congress on an equal footing with their exiled counterparts since 2011 (Fernández-Molina Reference Fernández-Molina2015, 245). When it comes to the Sahrawi refugee population over which the SADR in practice rules, great ambiguity and controversy surrounds the current figures. The UNHCR and the World Food Programme estimated nearly 130,000 refugees in 1998-2000 and 100,000 in 2005, respectively (Zunes and Mundy Reference Zunes2010, 128), but in recent years the Polisario Front/SADR have strategically refused to either disclose their own data or allow the UN agencies to conduct a census within the camps for political, military, and economic reasons (Isidoros Reference Isidoros2018, 54–55, 147, 151)—mainly out of fear of seeing humanitarian aid and food rations cut.

As far as government and governance-in-exile over the refugee camps and their population is concerned, the role of the parastate of Western Sahara/SADR has traditionally been pervasive due to a strong political attachment to the principles of self-management and non-interference, as well as the aim to normalize and “rehearse the state” (McConnell Reference McConnell2016) even within the “state of exception” created by displacement (Agamben Reference Agamben1998). International humanitarian agencies and NGOs do not implement their aid projects there directly, but work through a relevant SADR ministry or the Sahrawi Red Crescent (Mundy Reference Mundy2007, 286). As put by Pablo San Martín (Reference San Martín2010, 112), “[f]rom the early days of exile, the Frente Polisario organized health, education and food distribution committees not merely as a temporary management strategy for the camps, but primarily as a political and ideological strategy for progressively establishing the basis of a future Saharawi state.” In terms of political economy, due to the exceptional circumstances of material dispossession associated with exile, the SADR has never relied on any regular form of taxation from refugees, unless appropriation in the form of labor conscription is considered as such. All of this has been associated with the persistence of a single-party system where the often “indistinguishable fusion” of the national liberation movement—the Polisario Front—and the state—SADR—has led Alice Wilson (Reference Wilson2016) to refer to this governing pair as the “state-movement.” The absence of other legalized party-like political actors corresponds to the same strategy seeking to construct Sahrawi identity around self-determination and excluding anything that might weaken that. The lack of liberal democracy has been justified by the precedence of the ultimate goal of self-determination.

Despite all this, after a first decade when political life in the camps was strongly influenced by the revolutionary model of Muammar Gaddafi’s Libya (San Martín Reference San Martín2010, 116), a legitimacy crisis provoked by refugee protests in 1988, coupled with the 1991 ceasefire, led to an overhaul of the system aiming to make it less authoritarian. The parliamentarians of the SADR’s Sahrawi National Council started to be elected directly by the people in 1999 and heterodox contested elections are now regularly held in the camps, although multipartyism in the liberal sense continues to be absent (Wilson Reference Wilson2016, 77–79, 117–120, 207). Such evolution also forms part of an effort to demonstrate to the international community that the Sahrawis are capable of governing and supportive of democratic mechanisms, which can be viewed as a strategy to seek “earned sovereignty” akin to that followed by other parastates (Williams and Pecci Reference Williams and Pecci2004; Scharf Reference Scharf2003). It is not unrelated either to the conditionality entailed by the dependence on international humanitarian aid for the provision of welfare services (education, health). In general, Western Sahara’s current combination of democratic self-determination aspirations, democratic discourse, sui generis political participation and representation mechanisms, and persisting illiberal structures bears resemblance to that of other parastates such as Kosovo, Nagorno-Karabakh, Abkhazia, and South Ossetia.

External Sovereignty: Partial Forms of International Recognition and the Struggle Over Natural Resources

When it comes to the constitutive dimension of statehood and external or “international legal sovereignty” (Krasner Reference Krasner1999, 14–20), which is based on a polity being recognized as sovereign by other sovereign states, or in some cases by international organizations (Rossi this volume), the parastate of Western Sahara relies on three distinct partial forms of international (non)recognition the recognition of the Polisario Front as a national liberation movement and conflict party, the recognition of the SADR as a sovereign state, and the non-recognition of Morocco’s sovereignty claims over Western Sahara. The Polisario Front’s recognition was confirmed in 1979 by the UN General Assembly, which took its cue from the Organization of African Unity (OAU) in ratifying this group’s status as “the representative of the people of Western Sahara” which “should participate fully in any search for a just, lasting and definitive political solution of the question of Western Sahara.”Footnote ⁹ This resolution provided the Polisario Front with arguably fairly solid legal and political ground for its international engagement as both a national liberation movement and one of the two parties to the Western Sahara conflict involved in peace negotiations in subsequent decades.

Compared to the Polisario Front, the international recognition of the SADR as a parastate has always been more tenuous, yet far from negligible. This represents a substantial difference and strength in contrast with secessionist parastates. The fact that, as a “declarative” parastate, the SADR’s declaration of independence was not in violation of international law makes its existence significantly less contentious for the international community—and potentially more endurable in the long-run. The SADR has been recognized since its foundation by 84-85 UN member states, mainly from Africa and Latin America, with the former Yugoslavia and Albania being the sole European exceptions. However, almost half of these have later “frozen” or “withdrawn” recognition, leaving current diplomatic relations at around 40 sovereign states. Still, this constitutes a significant degree of what Deon Geldenhuys (Reference Geldenhuys2009, 25) calls “titular recognition,” that is, “the wide formal acceptance (at multilateral level) of an entity’s right of or title to statehood (…) as in the cases of Palestine and Western Sahara.” Two qualifications must be noted, however. First, the SADR’s recognition and de-recognition figures are volatile and contentious, and due to their continuous diplomatic outreach, there is no reliable source that can credibly determine their current status. Obtaining recognition “withdrawals,” especially in Africa and Latin America, has traditionally been among the top objectives of Moroccan foreign policy— similarly to the international strategy pursued by Serbia more recently in relation to the Kosovo issue. As such, rescinding recognition is not theoretically possible under international law, since the 1933 Montevideo Convention provides that the recognition of a state “is unconditional and irrevocable” (Article 6).Footnote ¹⁰ In practice, this does not seem to apply to “declarative” parastates but only to the secessionist ones, as constantly feared by Taiwan (Rossi this volume).Footnote ¹¹ Also, some of the numbers invoked by Morocco and the SADR/Polisario Front are construed from inconsistent political declarations while, in legal terms, the question of intent constitutes the litmus test for state recognition, and “intention cannot be replaced by questionable inferences from conduct” (Hersch Lauterpacht cited in Ker-Lindsay Reference Ker-Lindsay2015, 275).

The second qualification is that the international recognition of the SADR has always had a distinct non-aligned bias. No Western state has ever recognized this parastate. Significantly, though, the official position of global powers in general and Western actors in particular has been one of twofold non-recognition, whereby the non-recognition of the SADR is matched with non-recognition of Moroccan sovereignty claims over Western Sahara as long as the conflict is not solved. This is what has continuously frustrated Morocco’s longstanding ambition to obtain international recognition and legalization for its de facto annexation of the territory, the core objective of its foreign policy. In any case, it is only non-Western and primarily African states that have formally recognized and consistently stuck to their recognition of the SADR, becoming its firmest allies. Besides Algeria and Libya, the latter currently include the continent’s two regional powers, Nigeria and South Africa, as well as about 15 more non-Francophone southern and central African countries.Footnote ¹²

The same pattern extends to the SADR’s membership in international organizations. Admitting a contested territory or parastate into a state-based international or regional organization constitutes an acknowledged method of collective recognition, which has been termed “indirect collective recognition” but is still seen as possessing strong significance in terms of conferring statehood (Ker-Lindsay Reference Ker-Lindsay2015, 274). Such has been the vital role played by the AU and its predecessor the Organization of African Unity (OAU) in relation to the SADR. The SADR obtained full membership of the OAU in 1982 and sent its first state delegation to an OAU summit in Addis Ababa two years later, in protest against which Morocco withdrew from the pan-African organization. With the Moroccan chair remaining empty for over three decades, in 2002 the SADR would become a founding member of the AU. This substantially strengthened the SADR’s “titular recognition” at the African level (Geldenhuys Reference Geldenhuys2014, 361), and allowed it to enter into international legal agreements as an AU member. Yet, ambiguity has remained as to the relationship between the AU’s indirect collective recognition and the stances of its individual member states, which do not all recognize the SADR (Ker-Lindsay Reference Ker-Lindsay2015, 274). Morocco has in recent years sought to nurture and exploit these inconsistencies, wooing more and more African supporters, as part of a diplomatic offensive which culminated with its historic “return” to the AU in 2017—though at the price of accepting to coexist with the SADR in this forum (Hernando de Larramendi and Tomé-Alonso Reference Hernando de Larramendi and Tomé-Alonso2017). Besides the AU, the SADR only participates as a guest—not a member —in meetings of the Non-Aligned Movement and the New Asian-African Strategic Partnership. On the other hand, other regional organizations such as the Arab League are broadly supportive of Moroccan positions. The Arab Maghreb Union (AMU) has been in a coma with political dialogue frozen for two and a half decades owing to the rupture and lack of normalization of relations between Morocco and Algeria, which has been repeatedly fueled by the Western Sahara issue. Three out of the five AMU member states (Algeria, Libya, and Mauritania) have recognized the SADR at different points in time, with Tunisia being the only one to have never done so besides Morocco.

One last way in which the parastate of Western Sahara/SADR has been recently trying to consolidate its declarative and constitutive statehood on the international level concerns the legal and political dispute over the Moroccan exploitation of the annexed territory’s natural resources. This is part of a broader and increasingly effective “low politics” international strategy which also includes the denunciation of human rights violations committed by Morocco there—a card that several secessionist parastates have also been playing against their host states in order to gain foreign sympathy (see Caspersen and Stansfield Reference Caspersen and Stansfield2011, 73–89). However, while human rights can be approached from a universalistic and status neutral perspective, the issue of natural resources is inherently associated with the legal status of and the sovereignty over the disputed territory (Fernández-Molina Reference Fernández-Molina, Bouris and Schumacher2017b, 227–228). Western Sahara’s natural resources include renewables such as sand, wind, water, and fish, as well as non-renewables, primarily phosphate and oil (Zunes Reference Zunes2015, 392), all of which have been profitably exploited by Morocco in the 75% of the territory it controls since the late 1970s. Most notably, Morocco and Western Sahara together are the third largest producers of phosphates after China and the USA, and more than one-third of world phosphate exploitation is done by the Moroccan OCP Group (Trasosmontes Reference Trasosmontes2014, 19; Allan Reference Allan2016, 3), making the export of this mineral the largest source of income for the territory (Hagen Reference Hagen2015, 378). This demonstrates that Morocco’s vested interests in Western Sahara go beyond intangibles such as sovereignty and nationalism, involving also a distinct economic benefit (White Reference White2015, 340–342; Allan Reference Allan2016, 1).

The SADR’s grievances about the illegality of Morocco’s exploitation and trading of these resources gained momentum following the 2002 Corell Report, a shorthand for the opinion issued by the UN Office of Legal Affairs on contracts signed by Morocco and foreign companies to explore for mineral resources in the annexed Western Sahara territory. Although these non-exploitative contracts in particular were deemed “not in themselves illegal,” for the first time it was established that the people of Western Sahara legally retain “permanent sovereignty over natural resources” and must therefore be consulted about the exploitation and administration thereof. Moreover, any benefits from such exploitation must revert to them (Hagen Reference Hagen2015, 379). While the 2002 opinion was based on international jurisprudence concerning non-self-governing territories, years later Hans Corell himself went on to dispel legal ambiguities stating that “Western Sahara in reality is occupied by Morocco” (Torres-Spelliscy Reference Torres-Spelliscy, Boukhars and Roussellier2014, 242). In short, it has been made clear that international law prescribes that the exploitation of natural resources must benefit the Sahrawi people and respect their will (Soroeta Liceras Reference Soroeta Liceras2016, 218). What has not been legally spelled out yet is the role that the SADR should play in authorizing access to the land as the parastate claiming constitutive sovereignty. At the same time, in an attempt to alleviate international legal concerns, the Moroccan authorities and the OCP Group have announced massive investments amounting to $2,45 billion for the period of 2012-2030 in what they call the “Southern provinces” (Trasosmontes Reference Trasosmontes2014, 23; Smith Reference Smith2015, 273). The SADR and its supporters maintain that this is not directly benefitting the Sahrawi population, not even those living under Moroccan rule (Allan Reference Allan2016, 13; Zunes Reference Zunes2015, 296).

Against this backdrop, the Polisario Front/SADR have scored several political and legal victories in the past decade. First, their international lobbying hand in hand with the NGO Western Sahara Resource Watch (WSRW) has been quite effective in making international companies and large-scale import investors aware that, in full respect of legal and ethical criteria, they should not sign any contracts with Morocco to exploit the Sahrawis’ natural resources without first consulting them (Hagen Reference Hagen2015). Second, in the domain of fisheries, in December 2011 the European Parliament rejected the protocol of extension of the 2006 fisheries agreement between the EU and Morocco on the legal grounds that it included the waters of non-self-governing Western Sahara without its direct benefits for the local population having been properly demonstrated—among other economic, environmental, and developmental arguments (Fernández-Molina Reference Fernández-Molina, Bouris and Schumacher2017b; Bouris and Fernández-Molina Reference Bouris and Fernández-Molina2018, 317). Third, in relation to agricultural trade, the Court of Justice of the EU (CJEU) marked a turning point in 2015-2016. In 2015, it annulled the 2012 agricultural trade agreement between Morocco and the EU as far as its longstanding de facto application to Moroccan-annexed Western Sahara was concerned (General Court judgment). One year later, it took a step further and formally annulled this ruling based on the broader consideration that Western Sahara is not legally part of Moroccan territory and, therefore, none of the cooperation agreements between the EU and Morocco should be applied there at all (final appeal ruling of the Grand Chamber) (Ferrer Lloret Reference Ferrer Lloret2017, 21; Flavier 2017, 4; Kassoti Reference Kassoti2017a, 340).Footnote ¹³ Fourth, and going back to fisheries, in February 2018 another CJEU ruling has likewise concluded that the EU-Morocco fisheries agreement is valid for the simple reason that it is not applicable to the waters adjacent to the territory of Western Sahara.Footnote ¹⁴ Altogether, these cases are producing strong jurisprudence requiring the EU to start territorially differentiating between economic activities and products originating from internationally-recognized Morocco and the Western Sahara territory it controls, as increasingly done with Israel and the occupied Palestinian territories.

In terms of Western Sahara’s external sovereignty, the international recognition of the SADR as a sovereign state remains unaffected, but the international non-recognition of Morocco’s sovereignty claims over Western Sahara has been substantially reinforced, which indirectly clears the way for the parastate to consolidate its declarative and constitutive statehood. In the eyes of Sahrawi nationalists, the struggle over Western Sahara’s natural resources goes beyond their material value and is viewed as a new alternative way to unblock the path to sovereignty.