The conformity of the project of autonomy in the sahara region with the exigencies of international legality

The Project of autonomy in the Sahara region, officially presented by Morocco to the UN Secretary General on 11 April 2007, is not only in keeping with the exigencies of international legality. It has been precisely conceived with the aim of lifting doubt on the legitimacy of the recovery of the Sahrawi provinces and, by the same token, responds to the solicitations expressed by the UN in this regard.

In fact, it is in response to the calls that have been launched by the Security Council ever since 2004, with a view to coming to a political settlement to the Sahara conflict and breaking out of the impasse, by the same gesture, that Morocco submitted to the United Nations the Initiative for Negotiating an Autonomy Statute in the Sahara Region.

The proposal in question constitutes, according to Morocco, « ...a real opportunity for initiating negotiations with a view to reaching a final solution to this dispute, in keeping with international legality, and on the basis of arrangements which are consistent with the goals and principles enshrined in the United Nations Charter».

Within this perspective, the text of the Moroccan Initiative contains several provisions that demonstrate the conformity of the statute of autonomy proposed for the Sahara region with the principles of international law, as well as with the objectives of the United Nations, which incarnate such legality.

The international legality to which the Moroccan project for autonomy makes reference is not centred exclusively on the principle of self-determination; it includes other principles that carry the same political and juridical weight.

In this regard, coupled with its conformity with universal standards on matters pertaining to Human rights, the project is equally compatible with the fundamental principles of international law, such as the principle of self-determination, the principle of territorial integrity, as well as the obligation to peacefully settle international disputes.

I. The autonomy project and the principle of self-determination

The invocation of the principle of self-determination by the anti-colonialist majority within the United Nations, whose aim was to speed up the independence of colonial peoples, engendered in its wake some uncertainty as to the modalities of self-determination.

Thus, if this principle allows peoples to freely determine their political statute (independence, association to an independent and sovereign State, integration within a State, or the acquisition of any other political statute), the fact is that it has always been associated to the will and determination to bring to fruition an independence process by means of a referendum. However, even a cursory observation of international realities confirms this impression in so far as the implementation of the principle of self-determination has been marked by some political considerations that are inherent to each case of decolonisation, which accounts for the frequency in UN practice of the exercise of the right of people to self-determination via negotiation, and its rare realisation through the consultation of the populations concerned.

Besides, if contemporary international law allows for self-determination-decolonisation, it excludes in turn self-determination-scession, which is incompatible with the principle of territorial integrity.

The «self-determination-autonomy» to comes in to benefit the Sahrawi populations, and which is provided for as it is by the Moroccan project, is pursuant to international legality in so far as it yokes together two fundamental principles of international law; namely, the principle of self-determination, and the principle of the territorial integrity of States.

In the same vein, point 27 of this Project stipulates that « The Region's autonomy statute shall be the subject of negotiations and shall be submitted to the populations concerned in a free referendum.  This referendum will constitue a free exercise, by these populations, of their right to self-determination, as per the provisions of international legality, the Charter of the United Nations and the resolutions of the General Assembly and the Security Council ».

By providing at the close of a negotiation process for a free referendum-based consultation of the populations concerned, the Moroccan project responds directly to the resolutions of the Security Council, which recommends «a mutually acceptable political settlement» that is based on the principle of self-determination.

In this specific context, the King of Morocco considers the autonomy Project as «a modern version of self-determination, in perfect conformity, both at the level of form and content, with genuine, not perverted, international legality».

II. The autonomy project and the principle of territorial integrity

The «self-determination-autonomy» or «internal self-determination,» which is provided for by the Moroccan project constitutes a process of consensual self-determination which organises the principle of the territorial integrity of States.

Within this framework, if the principle of self-determination excludes «self-determination-independence» or secession, it nevertheless allows for self-determination-autonomy." International law and UN practice also exclude «self-determination-independence,» especially when it stalls the realisation of territorial integrity.

However, though it constitutes two fundamental principles of international law, it is noticeable that hierarchisation between the two principles, self-determination and territorial integrity, largely depends on the type of international dispute, as well as on the position of the parties in conflict. Thus, the Moroccan part is linked to the second principle, while the Polisario claims self-determination, a thing which reflects the difficulty of hierarchising the principles in question.

The principle of territorial integrity, recognised as it has been for a long time by international law, constitutes a limit to the application of the right of people to self-determination, and to the principle of the self-determination of colonised peoples. Resolution 1514 (XV), adopted on 14 December 1960 by the UN General Assembly, admits of this limit, and devotes thereto paragraph 6 which clearly stipulates that « 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 ».

Also, Resolution 2625 (XXV) relative to the principles of international law on  friendly relations and cooperation between States pursuant to the United Nations Charter, which was adopted by the UN General Assembly on 24 October 1970, reiterated its condemnation of secession by specifying that the right of people to self-determination cannot be construed as  « ... authorizing or encouraging any action, which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states...».

In proposing «the negotiation of an autonomy statute in the Sahara region within the framework of the sovereignty and the national unity of the Kingdom», Morocco shows proof of «realism and a spirit of compromise» without for that abdicating a constant in its foreign policy ever since obtaining of its independence; namely, the recovery of its territorial integrity.

The declaration made by the UN mediator on the Sahara conflict, Peter Van Walsum, before the Security Council on 21 April 2008, according to which «the independence of Western Sahara is not a realistic option». constitutes a supplementary and quite significant sponsorship similar to the «serious and credible» character of the project of autonomy in the Sahara region, a project that operates within the framework of Moroccan sovereignty and territorial integrity.

III. The autonomy project and the peaceful settlement of disputes

The commitment that Morocco has demonstrated in favour of a negotiated, definitive and mutually acceptable political settlement of the conflict within the framework of the project of autonomy in the Sahara region, is consonant with one of the fundamental obligations of the United Nations Charter; namely, the peaceful settlement of disputes and, by the same token, it is in tune with the principal aim of this world organisation: the maintenance of international peace and security.

In this specific context, point 33 of the text of the Moroccan Initiative for Negotiating an Autonomy Statute in the Sahara Region states that « ...the Kingdom of Morocco firmly believes today that the solution to the Sahara dispute can only come from negotiations...». It is a negotiation that, as has already been mentioned, ultimately aims at « ... to reaching a final solution to this dispute, in keeping with international legality, and on the basis of arrangements which are consistent with the goals and principles enshrined in the United Nations Charter ».

According to the provisions of the UN Charter, which express this international legality, the realisation of the prime objective of the world organisation - the maintenance of international peace and security-goes through the prohibition of recourse to force (Article 2, §4) and the peaceful settlement of international disputes (Article 33).

At the close of chapter VI of the UN Charter, which is devoted to the peaceful settlement of disputes, the Security Council could generally recommend to the member States either to take recourse to a mode of peaceful settlement - modes are non-restrictively listed in Article 33 - ; or come to the terms of a solution.

In fact, the diplomatic and judiciary procedures to which the States take recourse towards the peaceful settlement of their disputes are listed in paragraph 1 of Article 33 of the Charter. It is a matter of negotiation, investigation, mediation, conciliation, arbitration, legal settlement, as well as the referral to the pertinent regional organisms and agreements; or any other peaceful means chosen by the parties concerned to settle any dispute the prolongation of which is susceptible of threatening international peace and security.

Finally, if the Security Council has at its disposal a panoply of measures whereby it exercises its role on matters of adjustment of international crises, as well as the peaceful settlement of disputes, one can say, without a modicum of chauvinism, that, in seeking to complete its territorial integrity, Morocco has always taken the peaceful road traced by the UN Charter. This choice of peace may be verified through a brief recall of the most salient diplomatic action that has been undertaken by Morocco ever since the obtaining of its independence up until the formulation of the project of autonomy in the Sahara region.

The indefatigable diplomatic action undertaken by Morocco ever since obtaining its independence with a view to completing its territorial integrity, both in connection with former colonial powers or within international bodies such as the United Nations, The African Unity organisation, the Arab League, to name but a few, demonstrates its option for the peaceful settlement of territorial disputes. Thus did it recover, one stride at a time and through negotiation with the Spanish occupant, the cities of Tarfaya (1958) and Ifni (1969).

As to the recovery of the Sahara, which had been the object of claims of sovereignty expressed by Morocco way before the creation of the Polisario in 1973, the fact is that it came up against the Spanish and Algerian projects relative to the organisation of a referendum of self-determination in this territory without taking into account the historical, political as well as legal rights of Morocco. Despite this hostile attitude, the fact is that Morocco has always privileged the peaceful process of the settlement of disputes by referring the matter over to the International Court of Justice by means of the UN General Assembly.

Besides, even though the Moroccan forces settled in the Sahara only after the formulation by the ICJ of its October 1975 Advisory Opinion, which recognises the ties of allegiance obtaining between the Sahrawi tribes and the Sultans of Morocco, and the conclusion in November 1975 of the Madrid Accord between Spain, Morocco and Mauritania, an agreement which provides for a transitory tripartite administration of the territory in question, Morocco accepted the missions of good offices and mediation on the part of the regional Organisation, the Organisation of African Unity (OAU) as well as the international Organisation (UN), all with a view to finding a peaceful settlement to the dispute in the Sahara.

Hence, in order to untangle the situation, and to respond to international solicitations, Morocco has had a conciliatory attitude within the Organisation of African Unity, as well as within the UN, as amply testified by its acceptance of the principle of a referendum in the Sahara (during the African Summit of Nairobi, 1981) and the UN «Settlement Plan» of 1991.

In a nutshell, Morocco has always abided by the obligation relative to the peaceful settlement of disputes, as witnessed in its recourse to diplomatic procedures (negotiation, mediation, the solicitation of international bodies) as well as legal ones (referral to the International Court of Justice), as listed in paragraph 1 of Article 33 of the United Nations Charter, with a view to completing its territorial integrity.

Definitively, international legality is an asset that cannot be construed in such a manner as to please the interests of certain parties involved in the conflict at the detriment of some others. In our opinion, it has to be contextualised and relativized in accordance with the specificities of each conflict or dispute. In opting for the statute of autonomy in the Sahara region, Morocco has well and truly abided by this expression of international legality.

Azzedine Ghoufrane
Professor at the faculty of law, Souissi-Rabat