As part of the deal normalizing relations between Israel and Morocco, the U.S. recognized the latter’s sovereignty over Western Sahara, the status of which has been contested since Spain abandoned it in 1975. The UN and most countries have generally considered the area “disputed,” while maintaining the consensus that the West Bank is “occupied” by Israel. But, argues Eugene Kontorovich, the two territories have similar histories, and, if anything, Jerusalem’s claims to the West Bank are stronger than Morocco’s on Western Sahara. And this is only the beginning of the confusion in the widespread treatment of both disputes:
Traditionally, the law of occupation applies only to sovereign territory of foreign states. This covers most cross-border conflicts but not some post-colonial transitions where there is a gap in sovereign control. . . . When Israel took the West Bank in 1967, it wasn’t the territory of a foreign country. The West Bank had itself been occupied by Jordan in 1948, at the end of British administration. . . . Concerns that the Trump administration’s actions [regarding Judea and Samaria] could be used to justify Russia’s takeover of Crimea are baseless. Crimea was indisputably part of Ukraine, a sovereign country.
Self-determination in international law doesn’t typically mean the right of a people to have its own country. It can be satisfied by some degree of self-governance, and autonomy in internal matters such as language and culture. This is why the U.S. recognition was coupled with an endorsement of an “autonomy plan” for Western Sahara. The Palestinians today have vastly more autonomy than the Saharawi would have in the Moroccan plan.
The Obama administration also supported Moroccan sovereignty coupled with Sahrawi autonomy, as did other countries such as Spain and France—and even the Palestinian Authority. Morocco’s position has bipartisan support in Congress, and thus the U.S. will likely maintain the recognition policy.
There is a huge gap between many countries’ stances on Western Sahara and the West Bank that can’t be explained by legal differences. It will be a bad look for a Biden administration to harp on Israeli “occupation” and “settlers” while maintaining recognition of Morocco’s 1975 takeover.