Constituting the self in self-determination. An ir approach with an analysis of the Western Sahara case

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Research Centre for the Study of Population, Economy and Society

Miguel Torga Institute of Higher Education

Constituting the self in self-determination. An ir approach with an analysis of the Western Sahara case

Maria Joao Barata

Abstract

Because of the conventional, phrasing of the self-determination right in international law, the question of what is “a" people is much debated in politics and literature on self-determination. In addressing this question, the literature on self-determination appears to assume a sequence: first the people, then self-determination. By contrast, in this article, author addresses the problem from an IR perspective, particularly the IR debate on identity, focusing on the role of international norms in making political communities recognizable and legitimate. The author argues that the norm of self-determination influences the constitution of the selves in the international system. The author draws on symbolic interactionism to point out that advancing individuality and originality is always dependent upon society by the mediation of symbolic resources, including norms. The norm of self-determination is a normative resource to project and construct a self that is amenable to perform in the international system and be recognized by others. The self that is proposed by the nationalist movement of the Sahrawi of the Western Sahara-with a delimited territory, a defined population, a collective consciousness and governing structures-illustrates the argument.

Key Words: self-determination, self, identity, norms, Western Sahara

Introduction

The conventional phrasing of the self-determination right in international Law is: All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (UN 1960a: paragraph 2; UN 1966a and 1966b, article 1, paragraph 1; UN 1970, paragraph 1; UN 1993: paragraph 2; UN 2007: article 3, “indigenous peoples” substitutes “all peoples”, the rest of the article being equal).

Because of this phrasing, what is “a" people is much debated in politics and literature on self-determination. It is at stake to determine who qualifies as a people and thereby has a right to self-determination.

Whether a given people exists and who precisely belongs to such a people have been critical issues in debating the origins and settlement of many conflicts in which at least one of the parts claims for self-determination. In addressing these questions, the literature on self-determination sometimes tries to identify the objective and the subjective conditions of constituting national or ethnic identities. Other times, it grips to more modern and straightforward criteria, prominently the territory. In any case, a sequence appears to be assumed: first the people, then self-determination.

In a different way, in this article, I propose to address the problem of the self in self-determination, drawing on the academic discipline of international relations (IR), particularly the IR debate on identity, with a focus on the role of international norms in making political communities recognizable and legitimate. I argue that the norm of self-determination influences the constitution of the selves acting in the international system.

I assume that self-determination is an instance of the process of self and system being mutually constituted. Self-determination concerns conditions under which an entity can be recognized and accepted as an actor internationally. In being so, self-determination has ideological, political, and juridical effects in constituting international actors, either new entities in the system (for example, new states) or new kinds of actors (for example, indigenous peoples as recognized actors in international organizations). Self-determination works as a symbolic and normative resource for a group to project and construct a self that can perform in the international system. I draw on symbolic interactionism to make this claim, particularly on the idea of a reflexive process by which the international norm on self-determination can have constitutive effects in entities looking for recognition in international politics. This argument is meant to be typical and meaningful to understand a process but not necessarily representative of most cases of claiming self-determination. I will illustrate it with the case of the Sahrawi that claim self-determination within a project of political independence for the territory of the

Western Sahara. The way such a Sahrawi nationalism defines an identity that assemblages a bordered territory, a bounded population, and political institutions reflects the more general conditions of the possibility of a state within the international system, particularly the international norm on self-determination and its recognition to the Sahrawi people by the UN and other IO and states. The empirical case is presented as an exemplary case of the theoretical argument. While the empirical conditions under which the theoretical argument applies better or worse is a relevant question, it is not a question within the scope of this article.

The argument also contributes to understanding the resilience of the Sahrawi self-determination claim and resistance to the Moroccan occupation of part of the territory when this case could be seen as an anachronistic one. The colonization of the territory began later than all the others in the region; the same applies to the preparation of decolonization; even the awakening of a Sahrawi nationalism and consequent anticolonial struggle was a late one, in comparative terms. What is more, today, decolonization issues of this kind are out of the agenda of international politics. When they are in the agenda of international theory, it is mainly under post-structuralist perspectives, which claim for particularistic and subjectivist understandings of discourses and practices, and accordingly criticize as being naive what are universal and progressive perspectives (e.g., Epstein 2014, 2017), as is the Sahrawi arguments to claim self-determination, based on international law. For all these reasons, it seems that the resilience of a Sahrawi “nationalism” and its project of political independence would be unlikely. However, instead, such resilience is a kind of power that essentially prevents international recognition and legitimation of the effective occupation of most of the territory by Morocco.

In the first section of the article, I place the debate about the self in self-determination within the IR academic discipline, framing the argument within the IR debate on norms and identity in the international system. In the second one, I draw on Georg Herbert Mead's symbolic interactionism to point out that advancing individuality is always dependent upon society within a reflexive process. I then return to IR theory to further understand how norms can constitute selves. In the fourth section, this point is extended to the international norm and politics of self-determination. Next, I analyze how the contours of the self at stake in Sahrawi claims to self-determination reflect the international norm and politics of self-determination.

The self in self-determination: from the national to the international in outlining its constitution

Most theory, law and politics on self-determination assumes the pre-existence of the peoples who claim, have the right to or effectively exercise it. That is to say that self-determination depends on the existence of the people and not the other way around. Such an assumption appears to be equivalent to the assumption present in much IR theory, particularly rationalist IR, that the state, as the international self, is an a priori. Within this perspective, international relations are about the system constituted by previously given selves and their interactions, such system depending on such selves and not the selves on the system.

A critical point to the perspective that takes the people as pre-existing self-determination is defining what is a people to identify peoples and address their claims to self-determination politically.

Literature on nationalism and ethnicity draws on anthropology, historical sociology, linguistics, and other social and political sciences in discussing both the objective conditions and the subjective processes of identification that bound peoples, nations, and ethnic groups Still unsurpassable are the volumes edited by Hutchinson and Smith on ethnicity (1996) and nationalism (1994). For a more recent critical overview of the theories on nationalism, see Ozkirimli (2017).. However, this is problematic in what concerns possible applications to assess self-determination claims. Language, religion, ethnicity, and culture are examples of fairly objective criteria but are insufficient for that purpose, as the presence or absence of one of them is never conclusive to determine the existence and precise contours of a people. Besides, when there are political conflicts at stake in self-determination claims, most likely, those very objective and subjective factors for the bounding of an entity are contested and disputed by the parts. Self-determination conflicts mainly result from selves overlapping and colliding in its contours, that is to say, from identities that project a certain “corporeity” in terms of population, territory and political institutions. Thereby, most authors have suggested a combination of objective and subjective factors, pondered in casuistic and pragmatic arguments (e.g., Berman 1988; Deng 2008; Keating 2019; Koskenniemi 1994; Mayall 1999).

Although this is consistent with previous and rationalist IR theory, which assumes the pre-existence of the state in relation to the international system, by contrast, from a reflexivist perspective, we may question that peoples exist previously and independently from the institutional conditions that ground political communities internationally recognized as legitimate. In the same way, in IR, constructivist and post-structuralist authors began to problematize the constitution of the international self and thereby the assumption of the pre-existence of the state in relation to the international system. A common assumption that cuts across this debate is the idea that selves and system are mutually constituted.

In adopting this perspective, the problem of the self in self-determination can be reformulated as the problem of the constitution of an entity aspiring to be recognized as existing and performing internationally. Constitution means here “the ways in which particular objects, persons, things are put together, assembled or constructed in the plain, literal sense of the term (i.e. how their identity is organized)” (du Gay 2007: 6).

I engage this formulation within the assumption that self-determination is an instance of the process of selves and system being mutually constituted. The concept of corporate identity (Wendt 1999) anchors that assumption of the ontological priority of the self in relation to the international system. I will proceed critically questioning that assumption, pointing out the social character of the self even at its corporate level.

Wendt distinguishes a personal or corporate identity-which he considers previously given-from other kinds of identities, which are socially constructed (type identity, role identity and collective identity). Corporate identity concerns “essential properties (...) that make actors distinct entities” (1999: 224-225). It includes a material dimension, which, concerning states, comprises “many bodies and territory”, and an ideational dimension, which presumes many individuals endowed with a collective identity. Corporate identity is “auto-genetic” at both levels and thereby “constitutionally exogenous to Otherness” (1999: 225).

This thesis of the ontological priority of the actor in relation to the system, explained and defended in the constructivist area by Wendt, and implicitly assumed by neo-realists and neo-liberal authors in the rationalist area, can be set out in a simplified manner as follows: first, there are collective identities (societies, nations, ethnic groups, peoples), which will form corporate identities (states), which then will become actors in the international system. In the face of this, a more constructivist approach introduces the possibility of reversing the sequence. At the root of constructivism is the idea of mutual constitution and co-determination between actor and system, agent, and structure, the individual and society. Thereby, it becomes necessary to consider the very corporate identity as a social phenomenon, as an effect of the interaction at the system level.

While recognizing that the argument of the ontological priority of the state is just a rhetorical and methodological device to analyze the interstate system's constitution and functioning, Wendt admits the reversion of the sequence of the causal chain and constitution, particularly when considering empirical decolonization processes (Wendt 1992: 402, n. 40).

In brief, critically addressing the assumption of the ontological priority of the self suggests investigating the argument that the international system is directly responsible for the emergence and organization of corporate identities that present themselves in international society as representing collective identities. Most critiques of Wendt's perspective on identity in IR follow this path and stress the character entirely social, relational, extrinsic, non-essential of the self in the international system (e.g. AdlerNissen 2016; Guillaume 2009; Mitzen 2006; Neumann 2004; Schiff 2008; Zehfuss 2001). Within this perspective, the point is how the international system constitutes international selves, including their corporate identities. So, we must look into the articulations of the domestic and the international, the actor and the system, in constructing international selves.

One such theoretical articulation of relevance here is suggested by Cederman and Daase (2003), which addresses corporate identity formation departing from processes of human interaction, based on Georg Simmel's concept of sociation. Authors research how it is possible that large human groups, such as states, exist, considering three points. First, the large number of people involved requires processes that create cohesion. One such process is inter-subjective categorization, which enables the creation of communities that are imagined around relevant political categories and not around some general cultural identity. This difference is crucial because it makes the process more dynamic:

[S]ymbolic framing of actions and actors is capable of altering strategic settings abruptly. (...) New actors can thus be born or disappear 'overnight' without accompanying change in the cultural 'raw material', which is typically quite stable. (Cederman & Daase 2003: 13)

Notwithstanding, and secondly, such groups tend to be Long Lasting, requiring intergenerational transmission mechanisms, both biological and social. Finally, the spatial dimension involves a corporatization process through boundary formation. In what concerns states, Cederman and Daase argue, the main issue to discuss is the territorial exclusivity implied by the principle of sovereignty (cf. also Albert & Brock 2001: 34; Ruggie 1986; 1993).

These three points refer to internal group dynamics and the broader context of interaction in which the group is involved. We can locate in the international system the political categories that enable us to imagine and organize communities, the mechanisms that ensure such communities' reproduction in time, and the institutionalized ways of organizing space. Self-determination concerns all these three dimensions.

This point is also in line with neo-institutionalist sociology, which shows how the expansion of Western culture produced organizational models and behavioural isomorphism on a global scale-constituting actors and prescribing them desirable and legitimate aims. Furthermore, it is not internal functional requirements but external cultural legitimation that sets off organizational behaviour in such a process (Finnemore 1996: 330; Giddens 1985; Meyer et al. 1997). However, while neo-institutionalist sociology analyzes how the system constructs the actors, in this article, I look to the constitution of selves as an instance of the articulation between the domestic and the international.

I now will turn to Georg Herbert Mead's symbolic interactionism and its foundations of a reflexivist conception of the self. Mead's theory concerns the individual human being but can be applied to collective selves. Much IR theory is built through a move of transposing concepts and theories to larger ontological levels than the ones for which they were conceived in the first place-concepts and theories thought for individual persons in psychology, sociology and economy that become applicable for states, international organizations, peoples and other sorts of collective actors. In what concerns Mead's theory, the point for this article is his demonstration of how the very possibility of self-expression and assertion of a unique and original self depends on the internalization of a social structure.

The self as a reflexive project

As Anthony Elliot points out, symbolic interactionism is a privileged theoretical approach to think about the self as “the central mechanism through which the individual and the social world intersect” (2001: 24). Constructivism in IR draws on symbolic interactionism and other sociological theories to emphasize how social environment is the source of identities, overbalancing the importance of the social upon the individual, having in mind to oppose individualistic and asocial perspectives that support most rationalist IR theories (cf. Barnett 1998: 27). My purpose, however, is to redeem the active and creative-and social at the same time-way by which actors relate with symbols and norms in constructing and projecting their selves, that is, to emphasize the reflexive mechanism that builds selves and societies, yet without making a psychological adaptation of symbolic interactionism to IR, as Adler-Nissen (2016) notices in much constructivism. For this purpose, it is worthwhile to return to the basics.

While rationalist behaviorism understands human behavior as a response to stimuli external to the person, symbolic interactionism puts human reflexivity mediating external stimulus and behaviour. Thereby, what is at stake is not only the facts of human experience, but mainly the way experience becomes an object of thought and action, a matter of interpretation, and, through that, is organized in attitudes (cf. Blumer 1986 [1969]; Mead 1967 [1934]). Reflexivity and communication depend upon symbols, which are representations of objects. However, Mead does not reduce the self to language, as he recognizes it has a pre-discursive capacity for agency (cf. Callero 2003).

For Mead, the main characteristic of the self is that it is “an object to itself” (1967 [1934]: 136). The self is reflexive; it is subject and object at the same time. The individual is capable of seeing him-/herself as if he/she was someone else. The self is a social process only made possible by the internalization of a structure of social interaction. The individual experiences him-/herself indirectly through the point of view of people with whom he/she interacts, or through the more general and organized point of view of the community - “the generalized other” (1967 [1934]: 154). The famous distinction advanced by Mead between the “I” and the “Me”, as phases of the self, enables us to understand how individuality and creativity in human beings depend upon society. The “I” expresses what is unique and unpredictable in the self, while the “Me” expresses the presence of the generalized other in it. The “Me” takes the attitudes of others, while the “I” reacts to them, a reaction that involves adjusting to social expectations or otherwise challenging, resisting, manipulating, negotiating, or fighting them, in any case transforming the situations in which it finds itself. Both are necessary to express something that, while it might be unique, is also meaningful to others.

Mead connects the self and the claim of rights in a way that is particularly relevant to my argument. The conditions that endow us with a self are the same that make us members of a community and therefore holders of rights:

We cannot have rights unless we have common attitudes. (Mead 1967 [1934]: 164)

It is only by taking the attitudes of the generalized other, organized in membership and position in the community, that the individual can claim the recognition of the rights and values that are due to him/her by such belonging and position. Usually, dignity comes with it. At other times, however, an original attitude gives the individual a sense of importance and dignity, even if such attitude arouses disapproval. This last case does not mean that the community is no longer at the root of the self; it can happen when the individual takes the attitudes of another community, which can even be an imagined future community.

Mead's theory is an engaging tool for a perspective of the self as a project-a symbolic project activated and continuously reinvented by the individual drawing on the symbols of the community with which he/she identifies and to which he/she aspires to belong. Thus, the study of the self requires the study of individual self-interpretations, which refers to his/her conscience but also to the symbolic resources that society makes available to him/her and on which he/she draws. In sum, according to Mead's symbolic interactionism, one should not privilege internal or external sources of the self; instead, one should look to the connection between them.

Norms are one kind of symbolic resources the self draws on in its reflexive project. Norms provide ground and orientation for a self to exist and perform meaningfully within a community. Nevertheless, this does not mean that actors must follow norms to be part of the community. On the contrary, actors always interpret norms and relate strategically with them in multiple ways, which subverts any idea of a linear path of norms determining actors' selves and behaviour. Being self-determination a norm of international law and politics, I will now analyze this relation between norms and the self.

Norms and the self

Norms can be regulative and constitutive simultaneously (Onuf 1989: 62; 2015: 68-69; Ruggie 1998: 22-24). The regulative aspect of norms draws attention to causal effects, which mainly have to do with constraining behaviour and social control. However, this does not imply seeing actors as passive as, even in this regulative aspect, actors can make creative uses of norms and strategically manipulate them to further their projects.

However, norms can be more than points of reference for actors to organize their interests, preferences, and behaviours: norms can become constitutive of actors themselves. The constitutive aspect of norms concerns the system's foundations, and so the logic, meaning and structure of the “game” actors play within the system. In its constitutive aspect, norms define the realm of what is possible, what makes sense, and what is desirable in a given context. The constitutive effects of norms unfold in the construction of the identities and roles of the players.

Referring again to Mead, if we assume that norms represent general attitudes of the community, it then follows that they are crucial in providing an entity with the ability to reflect upon itself and act in the community to which it belongs. Thus, to some extent, norms are symbols as they are interpreted and support interpretation-of situations, roles, identities. In this sense, norms enter the reflexive process by which an entity becomes a self, i.e., an entity capable of developing an internal conversation through symbols, taking itself as an object of thought and action and assuming itself as a project.

The constitutive aspect of norms is more profound than the regulative one because it can also have behavioural effects and be causal while it is constitutive. How do constitution and causality relate? Norms construct situations in which a given set of choices makes sense, which itself is a constitutive effect. However, from that perspective, norms are “the means which allow people to pursue goals, share meanings, communicate with each other, criticize assertions, and justify actions” (Kratochwil 1989: 11); that is, norms provide structure to action. More explicitly,

Constitution addresses the question of who becomes actors, how they are recognized as such and how they must behave to sustain their identities and status. (Lebow 2009: 212, my emphasis)

What and how an entity “is” is also the effect of how he/she/it behaves (cf. also Goffman 1971 [1959]). Thereby, constitutive causality happens when “antecedent conditions, events, or actions are 'significant' in producing or influencing an effect, result, or consequence” (Ruggie 1998 apud Lebow 2009: 213). “Significant” is here the main point as it means the cause has an effect by conferring meaning to something. Constitutive causality looks at the connection between cognitive frameworks and behaviour (Lebow 2009: 239). As Klotz and Lynch note, learning the codes that structure the cognitive frameworks of situations in which actors situate has effects of socio-psychological transformation that will reflect in behaviour (2015: 40 and 52). Constitutive causality relates to the “how” more than to the “why” things happen. In researching “why”, we look for a causal link, that is, the existence of a cause-effect relation; in researching “how”, we look to the causal mechanism, that is, the way by which the cause produces the effect, the mediation process between cause and effect.

Another point to notice is that actors deal strategically with norms (cf. Goffman 1971 [1959]; for an application in IR see Adler-Nissen 2014; Barnett 1998). Symbolic interactionism makes us look at how actors interpret the norms in active and creative ways. According to their resources, skills, and goals, actors can follow, resist, instrumentalize, manipulate, even reformulate the norms. These are essentially symbolic activities as they mainly concern interpretation.

I now propose to look into the norm on self-determination from this perspective.

The self in self-determination: norms and agency in constituting international actors

Self-determination is a general modern idea that we all have an inalienable right to freedom from oppression and a more specific norm of international law referring to ways of ruling and of bounding political communities demographically and territorially (Ronen 1979). In both senses, self-determination defines standards for constituting and recognizing selves in the international system. Thus, groups and movements appear whose claims and struggles are significant and not merely noise as they refer to logics, practices and norms in the international system, and thus challenge other actors' responses and the system itself. This is particularly evident when a right is at stake.

According to Kratochwil, the possibility to be claimed is what distinguishes rights from other kinds of norms. A right is something that “has to be `exercised', i.e., requires activation by the right-holder” (1989: 163). The concept of right thus immediately points to a social relation. At this point, something peculiar can be noticed in the right of selfdetermination, as this right points to an intended or aspiration to become a social relation. With Mead, we saw that to claim a right, the individual must be a member of the community which entitles it. However, from an IR perspective, the norm of selfdetermination also has to do with the event of entering the community, of becoming a member, i.e., to constitute itself as a political entity recognized and protected at national or international Levels. Logically, this means that those who claim self-determination are not yet community members, or their member status has been undermined. At the same time, this means that the community tends not to recognize them.

Such logical contradiction has much to do with worldwide conflicts resulting from self-determination claims, many of which are violent and protracted. Most, if not all, selfdetermination conflicts relate to the overlap, incompatibility, and non-recognition of the bordering of selves, i.e., of identities that project a given “body” in terms of population, territory and political institutions.

International law provides a formal framework for the recognition of new political entities:

The law gives substantive content to the actions that political entities perform, but in addition, it also provides a standard by which political entities may be recognized as entities of a certain kind. (Ringmar 1995: 87)

Recognition “represents the process through which actors come to exist as actors within the international system and take on a particular identity within that system” (Greenhill 2008: 344). Accordingly, to struggle for international recognition has behavioural consequences that end up constituting identity: “[t]o abide by the law is thus not primarily a matter of `being good', but rather a matter of submitting oneself to a rule which makes it possible “to be” in the first place” (Ringmar 1995: 95, author's emphasis). The law establishes the conditions under which identity can be claimed legitimately. Existence is, therefore, at the same time, subjection and a right. It is subjection to some normative order, which grants the right to exist under a specific identity.

However, existence also is tightly connected with action. Human groups in conscious aggregation (cf. Ronen 1979: 56) strategically draw on the norm of self-determination to both bound and organize political communities and struggle for recognition within a state or, most often, within a regional and international context. These two processes of identity construction and struggling for recognition are tightly connected. Intuitively, we tend to see them in a temporal sequence: first, the construction of the self, mainly by endogenous means, and then seeking international recognition. However, the connection can be rounder than that. Recognition, whether actual or expected, can inform beforehand the constitution of the self. This is constitutive causality.

For example, when a powerful external actor (a state or an international organization) sets conditions for the recognition of a new entity, these conditions concern the very nature of the “organism” to which refers the self, that is, its corporate identity, which includes population, territory, borders, a group conscience, and political institutions. More often and subtly, however, identity construction reflexively considers general norms and expectations regarding the configuration of selves and identities in seeking the recognition of its existence.

Although worded in abstract terms, this is not an ahistorical mechanism. On the contrary, it concerns international order after 1945. At this point, it is useful to refer to the international law debate confronting the declarative thesis and the constitutive thesis on the recognition of states.

The declarative thesis is based on an idea of effective entities and argues that a state exists from the moment that an entity has a given set of attributes (permanent population, delimited territory, government, and capacity to enter into relations with other states), such existence implying that the other states must recognize it. As it turns out, this thesis reproduces in international law the assumption of the ontological priority of the actor, that is, the idea that states come to existence by endogenous processes which precede their entrance into the international system. By contrast, the constitutive thesis is based on the idea of legal entities and claims that it is only to the extent that it is recognized that a state enters the international society, which gives a decisive role to international law and diplomatic protocol.

Fabry (2010) sees the recognition of new states and the norm of self-determination as two aspects of the same process, at least after 1945. The practice of recognizing effective states (declarative thesis) correlates with a negative right to self-determination, i.e., the right of non-interference by a foreign power in the life of a people. In 1945, this right of non-interference, which also implies rejecting annexation or partition of existing states resulting from external aggression, was definitively established in international law and politics. Nevertheless, in the same way, the recognition of new states based on the principle of de facto statehood also was abandoned and became effective a previous right to independence and not a de facto independence for a given entity to be recognized as a state; that is, the constitutive thesis enters into force. In this situation, self-determination already is a positive right that imposes an active obligation on international society. With decolonization, for the first time, international society defined entities - peoples - entitled to independent sovereignty.

The Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly (GA) Resolution 1514 (UN 1960a), recognized the right to self-determination to all peoples, meaning to include peoples under colonial dominion. A conflict arose, however, on determining who held such a right. The conflict was between those who defended that the right should apply to all peoples, including those peoples within already independent states, and those who wanted to limit the right to the whole population that inhabits a territory colonized by some Western imperial power, thereby institutionalizing colonialism as geographical separation and ethnic difference from the colonizing power. It was this last interpretation that prevailed.

This result was further reinforced by the qualification of the self-determination right by the principle of the territorial integrity of states, stated in the same resolution:

Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. (UN Charter, paragraph 6)

This paragraph could be interpreted concerning the territorial area of some ethnic group or political community before colonization or, on the contrary, refer to actual and strictly territorial colonial borders. It was this last interpretation that was adopted. Furthermore, a few years later, the Organization of African Unity (OAU, present-day African Union) turned it into law, declaring that borders inherited from colonialism were tangible and outlawing its violation (OAU 1964). This resolution was opposed only by Somalia and

Morocco, two countries that had the intention to restore alleged pre-colonial unity upon ethnic and historical arguments. For all the rest, in this context, the self in self-determination should develop from the corporate identity set by colonization.

Later, normative developments in the OUA and the United Nations (UN) extended the right to self-determination to peoples under foreign and racial dominion and indigenous peoples but proceeded in subordinating the right to self-determination to the territorial integrity of states.

These formulations empowered and shaped many claims for autonomy and independence. The consciousness of “having a right” is different and in a way more vital than the conviction of “being right”, in the sense that “a right” is socially entitled to someone and works as a barrier against other sorts of moral or instrumental considerations (Kratochwil 1989: 159 ff). This point also adds to understanding the resilience of self-determination claims.

Self-determination and the constitution of the Sahrawi self

I will now turn to the illustrative empirical case. This analysis synthesizes more detailed research that I made to elaborate my doctoral thesis Financing by FCT (the Portuguese national funding agency for science, research, and technology) through a doctoral scholarship with the reference SFRH / BD / 46379 / 2008., based mainly on legislation, published documents by Sahrawis authors, and thematic content analysis of an online forum participated by Sahrawis (Barata 2012).

I approach the case descriptively, considering corporate Sahrawi identity at stake in self-determination claims at its three dimensions: population, territory, and political institutions. To each of these dimensions, I will briefly trace its contours in lines that link it to the terms of the norm of self-determination as it is applied to this case by the UN and its internationally recognized liberation movement claims it.

The conflict over the sovereignty of the territory of the Western Sahara concerns the claim to self-determination by the Sahrawi people-voiced by its internationally recognized national liberation movement, the Polisario-and the occupation by Morocco of most of the territory, claiming the recognition of a territorial integrity that arguably was interrupted by the Spanish colonization of the region. To this article, the case is not the conflict in itself, but the constitution of the corporate identity of the “self” that claims self-determination, being at stake territorial boundaries, a bounded population with a collective consciousness, and the institutional political representation of such a claim.

In line with this shift in the perspective, the point is not to analyze such a self as an effect of a secular experience of living in the harsh conditions of the Sahara and of resistance to attempts to domination by foreign powers-which it also could be, but that would be more in line with anthropology and historical sociology studies on nationalism. Instead, the point is to highlight the effects of the international norms and practices concerning the constitution of modern political communities, among which it is paramount the right to self-determination and its recognition to the people of the Western Sahara. This analysis Looks to a process unfolding in which a self-determination movement projects an entity that can internationally present claims based on such a Legal right.

I begin by briefly tracing the history of the conflict, as the conflict is also a locus for constructing the Sahrawi self. Outside of my analysis is the self that Morocco strives to project in this context and the representations by both parts of political identities attuned with current international political concerns. These analyses were to be made if the focus was on the conflict itself (see, e.g., Orellana 2015).

The right to self-determination was first recognized to the population of the territory by the UN in 1964, referring to GA Resolution 1514 (UN 1960a), meaning- according to the following GA Resolution 1541, which defines the three options for self- determination-that the population of the territory could choose between independence, free association or integration with an independent state (UN 1960b). For this purpose, Spain should organize a referendum, the planning for which started in the early 1970s. Morocco and Mauritania had started to claim self-determination for the territory in the previous decade, with the perspective that populations in the north and south would choose to integrate its states, respectively. Also, a nationalist movement held by young and educated Sahrawis developed in the territory. Although the idea of liberation from Spanish colonial dominion was uncontroversial, postcolonial corporate identity was still an open issue at that time-integration in Mauritania and/or Morocco, federation with Mauritania, integration into a federated Great Maghreb or independent political sovereignty, were, and some still are, scenarios under discussion (see, e.g. Campos- Serrano & Rodnguez-Esteban 2017).

In 1974, Morocco pressed the GA to request from the International Court of Justice (ICJ) an advisory opinion on the territory's status before colonization, yet, contrary to its expectations, the Court concluded that the population of the territory should exercise its right to self-determination following the Declaration Granting Independence to Colonial Countries and Peoples (ICJ 1975a: 68, paragraph 162).

In 1975, Morocco and Mauritania invaded the territory from the north and the south, respectively; Spain withdraw. Then war was waged against them by Polisario. Polisario is the national liberation movement of the Sahrawi people that prevailed over other self-determination movements that emerged still during the colonization period. Until today, it voices internationally a project of political independence and a claim to self-determination, notably within the UN. Since 1979, the UN has recognized it as the legitimate national liberation movement of the Sahrawi people.

Returning to 1975, with the invasions of the territory, thousands of Sahrawis flew to the Algerian region of Tindouf, where, still today, about 174,000 Sahrawis live in five refugee camps (UNHCR 2018: 4), governed by Polisario. Peace was made with Mauritania in 1979. With Morocco, war continued until 1991, when a UN peacekeeping mission (MINURSO) was implemented to organize a referendum on self-determination for the territory's population. The identification of the voters for the referendum, however, was a complicated process during the 1990s. Although Polisario tried to stick to the census that Spain had done on the territory, Morocco tried to include thousands of other names based on tribal and residential criteria, following Moroccan citizens' dislocation to the territory it had occupied. In the end, the referendum did not happen, and MINURSO remains in the territory until today. Since 2007, the UN has tried to promote negotiations for a political solution that all parts can accept.

The parts remain irreducible in their positions, however. Morocco proposes a solution of autonomy and does not accept a referendum in which independence for the territory would be an option. Polisario does not accept negotiating the possibility for Sahrawis not to choose independence in a referendum. By sticking to international law, particularly to the right of self-determination recognized to the territory's population by the UN, Polisario and allied countries, organizations and activists have managed to prevent the formal recognition of the occupation. However, international politics at the UN Security Council, particularly support of the Moroccan position by France and the United States-which is one of effective occupation of most of the territory and intensive exploitation of its natural resources-have prevented MINURSO from accomplishing its mission, i.e., the realization of the self-determination referendum. In the territory, political and structural violence signs persist with recurrent reports of human rights violations (e.g. HRW 2018: 375 ff).

In this conflict, an argument premised on pre-colonial history and an argument premised in international law confront. Both arguments concern “selves” that overlap and collide in their contours, yet the focus of this article is the second one. international legitimacy selfdetermination constitution western sahara

The territory of Saguia el-Hamra and Rm de Oro is a reference in the constitution of the collective identities of several peoples, giving rise to several historical arguments for different and contradictory claims. By contrast, international law is clear and univocal in stating that the territory's population has the right to self-determination, and the case still is at the UN registered as a decolonization one. This point is crucial for the argument at hand. In this case, as in most cases of decolonization, the self-determination norm imposes a self whose limits concerning territory and population were set by colonization. In practice, this meant the prevalence of the colonial territorial borders and a consideration of the native population within such borders, regardless of other identifications that would link to other sorts of cultural, social, and political relations crossing those territorial borders.

Polisario draws its political independence project and self-determination claims primarily on this legal argument developed from the UN and OAU norm of self-determination, subordinating historical arguments referring to pre-colonial times.

On the contrary, for Morocco, the historical argument is crucial. Based on specific interpretations of history, it argues for a Great Morocco-comprising the Western Sahara, Mauritania, parts of Algeria, Mali, Senegal, Ceuta and Melilla-that would have existed before the colonial era and should be remade in the postcolonial period. With the expectation that this argument would be internationally recognized, in 1974, Morocco promoted a request by the UN General Assembly to the ICJ of an advisory opinion on the territory's status at the time of colonization by Spain in the late 19th century. Paradoxically, such advisory opinion became a primary normative source for the project of political independence for the Western Sahara, informing its claim for self-determination on the international stage.

The questions were:

1. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?

2. If the answer to the first question is in the negative,

3. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity? (ICJ 1975a: 14)

The advisory opinion examines the arguments presented by Morocco, Spain and Mauritania concerning the Sahrawi self - its political nature, identity, and boundaries (ICJ 1975b), but because only states could present their positions before the Court, entirely missing is any argument presented by Western Saharans themselves. The way the questions were formulated did not even mention the population of the territory. It was the Court that explicitly put the population at the heart of the problem:

[T]he Court cannot accept the view that the legal ties the General Assembly had in mind in framing Question II were limited to ties established directly with the territory and without reference to the people who may be found in it. Such an interpretation would unduly restrict the scope of the question, since legal ties are normally established in relation to people. (1975a: 41, paragraph 85)

The ICJ introduces the population in the formulation of the problem being addressed, considering it strictly within the territorial borders established by Spanish colonization. The Court favoured the self-determination of such population, still envisioned as “peoples”.

To the first question, the ICJ gave a negative answer (1975a: 40, paragraph 82) because it considered that ... at the time of colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them. (1975a: 39, paragraph 81)

Regarding the second question, the Court explicitly connects it with the right of self-determination of the population of the territory: the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory. (1975a: 68, paragraph 162)

The point was, and still is, about the existence of a people and its connection with a territory. In this case, this connection enters the constitution of the people.

In the modern sense of a boundary that defines belonging and exclusion, the territory only recently entered the constitution of the Sahrawi identity. The notion of political boundary as a line that territorially delimits sovereignties and ways of social organization and constrains movements and contacts is an awkward notion inside the great desert until the late 19th century (cf. Komorowski 1975). These large spaces of nomadic Life, as the Sahara is, can be seen as “des espaces d'interpйnйtration stratifiйe et non des espaces d'exclusivitй et d'homogйnйitй comme tendent а l'кtre les espaces йtatiques modernes” (BadueL 1996: 5). Ruggie notes that territoriality may have to do with movement and not with the place, precisely the case with nomadism; territoriality does not have to be fixed; it only is in the Westphalian State (1993: 173). For the ICJ, ... the significance of the geographical [intersection and] overlapping [of the migration routes of the nomadic tribes] is (...) that it indicates the difficulty of disentangling the various relationships existing in the Western Sahara region at the time of colonization by Spain. (1975a: 67, paragraphs 159-160)

The point here is nomadism, which involves at Least two aspects. First, the same places are inhabited and exploited by several peoples, families, and tribal fractions. There was no private property of Lands, pastures, or wells in the Sahara before colonization. They're existed private property of cattle and a hierarchy of rights and obligations in accessing those immovable resources, but even that access was constantly being challenged and modified. secondly, the harshness of the environment and the scarcity of resources, which only enabled nomadic pastoralism, demanded that the limits set by the europeans were far exceeded in all directions. The vast desert was Dar al-Islam (Territory of islam), and the references of identity and authority were religion and genealogy, not the territory. it was the entry into modernity and the aspiration to independence within the international community that made territoriality, associated with a political border, a condition for freedom and an identity criterion, which meant downgrading nomadism and accepting colonial borders, following UN (1960a) and OUA (1964) interpretation of colonial self-determination.