The 2007 Moroccan Autonomy Plan for Western Sahara:
Too many Black Holes
By Carlos Ruiz Miguel
The new autonomy plan presented by Morocco in 2007 is even more regressive than the plan presented in 2003. The Moroccan initiative to negotiate an autonomous statute for Western Sahara presented by Morocco in the United Nations on April 11 2007 was presented as an alternative to the Moroccan blockade to the “Baker Plan” (“optimum political solution” backed unanimously by the Security Council). This initiative received with praises by some high North American, French and Spanish officials contains diverse (too many)"black holes" that weaken its essential elements. The intention of this analysis is to demonstrate, firstly, that from the international law point of view, this Moroccan "initiative", although still contains aspects opposite to the international legality (like its premise that the Western Sahara is a part from Morocco), contains others (recognition of the self-determination and the referendum) that constitutes a new turning point in the foreign policy of this country on the question of Western Sahara, necessary after having emplaced it as a Moroccan territory, clearly illegal. Secondly, from the point of view of the Constitutional Law, i pretend to argue that this "initiative" constitutes a serious regression with respect to the previous projects of autonomy presented by Morocco or the United Nations. This regression, that takes place in matters of such importance as the organization of the power, the census, the referendum, the natural resources, the human rights or the guarantees of the autonomy makes us feel that we face a text that lacks seriousness to constitute the departure point of any negotiation on the future of the Western Sahara. Besides, in this analysis, the autonomy anticipated for the Western Sahara will not be compared with other international autonomies like the one of Palestine, which would make even clearer the insufficiency of the Moroccan proposal.
I. The CONTEXT OF THE DOCUMENT. I.I In the meeting held with James Baker (Personal Envoy of the Secretary General) the 15 of April of 2004, Morocco gave their definitive answer to the Plan of peace for the self determination of the people of Western Sahara ("Baker Plan"), attached to a letter dated on April 9th, 2004 directed to James Baker by the Moroccan Minister of Foreign Affairs and Cooperation(1). In that letter, Morocco rejects the principle of self-determination and the celebration of a referendum, although both (that principle and that means) are enshrined by the United Nations. The text of the letter is clear: for Morocco, the "autonomy, agreed to between the parties and the United Nations, would close the issue of self-determination". From here, "the autonomy solution, as agreed to by the parties and approved by the population, rules out, by definition, the possibility for the independence option to be submitted to the said population". It is more, "as far as the Kingdom is concerned, the final nature of the autonomy solution is not negotiable". And it concludes that "it is out of the question for Morocco to engage in negotiations with anyone over its sovereignty and territorial integrity". In reality, this diplomatic language avoided specifically to accept the principle of self-determination (the options that the international legality established to decolonize a territory were excluded) and the celebration of a referendum (it was only spoken about what formula had to be "approved by the population", without saying how or what "population").
I.2. The Moroccan rejection produced a blockade of the situation. Some of us advanced the idea that beyond the "Baker Plan" no solution was possible, but others have thought that it was not impossible(2). It is the case of the people in charge of the foreign policy in the USA. The North American representative in the Security Council declared that, after the adoption of resolution 1720, October 31st, 2006, he "had exhorted Morocco to present a proposal of global autonomy ` to be credible for the territory" and he suggested Morocco to enter in direct negotiations with the Saharawi people(3). This "appeal" had certain effectiveness. In effect, it obtained that, finally, Morocco presented a "proposal of autonomy", something that Morocco was constantly announcing but never carried out, after presenting its project of December 2003, which was rejected by the UN(4). It is now the "Moroccan Initiative for the negotiation of a Statute of autonomy for the region of Sahara"(5). However, if this proposal is "credible", this is something that we are going to examine next.
II LEGAL INTERNACIONAL ANALYSIS OF THE "MOROCCAN INITIATIVE":
AN INSURMOUNTABLE CONTRADICTION.
From the perspective of the International Law, there are some differences between the "Moroccan Initiative" of April 2006 and the project presented in 2003. Nevertheless, both texts start from the same premises, incompatible with the International Law, that lead to equally incompatible consequences.
II.1. The Moroccan project of 2007 begins with two contradictory premises.
II.1.A. The Moroccan project of autonomy of December 2003, does not mention in any moment the principle of self-determination (although Morocco already accepted it specifically for the first time in the 60s and then in the 80s and 90s). On the other hand, the project of April 2007 does specifically accept again the self-determination principle. It is mentioned in two parts of the document. First , in point 8 of the project where it says that "the autonomy statute shall be submitted to the populations concerned for a referendum, in keeping with the principle of self-determination and with the provisions of the UN Charter". And secondly, in the point 27 which provides that the autonomy will be submitted to a referendum that "will constitute 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 ". This shift of position of Morocco (to the acceptance of the self-determination principle) can apply to the words of resolution 1754 ("welcoming serious and credible efforts of Morocco to move the process forward towards resolution").
II.1.B. Nevertheless, this positive step, which is the acceptance by Morocco of the international legality (which in the past had accepted but soon rejected) is incompatible with other passages of the 2007 project that, certainly, does not satisfy the demands of the International Legality. As the 2003 project (point 4) did, the April 2007 one starts with a premise that is contradictory with the principle of self-determination and opposite to the International Law, that is to say, that the Western Sahara is now under Moroccan sovereignty. This premise is present in several passages of the "initiative" of 2007. Thus, in point 2 ("Responding to this call by the international community, the Kingdom of Morocco
set a positive, constructive and dynamic process in motion, and pledged to submit an autonomy proposal for the Sahara, within the framework of the Kingdom’s sovereignty and national unity "). Also, point 14 " The State shall keep exclusive jurisdiction over the following in particular: - the attributes of sovereignty, (...)".
Self-determination means that the destiny of the territory depends on the decision of its original population. This is as a consequence of recognizing that the sovereignty of the territory belongs to the original population and only they can decide if the Sahara will be Moroccan, independent or something else. It is evident that the 2007 project, just as happened to the "Framework agreement" and with the 2003 project, establishes like premise (that the Western Sahara is part form the "Moroccan territorial integrity" and it is under "sovereignty" of Morocco) what only can be conclusion of a self-determination process (that the Western Sahara freely decide to integrate itself in Morocco). That’s why James Baker and the United Nations considered that the Moroccan project of 2003 was "insufficient". And therefore it is the 2007 proposal. Indeed, this premise constitutes a negation of the right to the self determination of the Saharawi people, something unacceptable in the International Law.
II.1.C. It is evident that the recognition of the self-determination principle in points 8 and 27 of the project (which implies that the sovereignty belongs to the Saharawi people) is incompatible with what is provided in point 2 (which says that the sovereignty of the Western Sahara corresponds to the Kingdom of Morocco before the celebration of the referendum). This contradiction, with no doubt, reduces seriousness to the initiative. Furthermore, as we will see, this question has an essential importance to assess the character of the referendum anticipated in the project.
II.2. The contradictory premises of the Moroccan project of 2007, give rise to equally incompatible readings about the meaning of the referendum which is anticipated in this "initiative". Everything seems to indicate that the referendum anticipated in the 2007 project, neither is free, nor contemplates the possibility of choosing between diverse options. Although the Moroccan official speech (promoted by King Mohamed VI) maintained that the referendum as a means to solve the conflict "expired", the 2003 proposal, as this one of 2007 demonstrates that desires cannot deny the reality of the International Law.
Once Morocco has accepted the self-determination principle, it is necessary to put it into practice and for that purpose, the actual International Law has a means, which is the free and democratic "referendum", supervised by the UN. Resolution 2625, of the General Assembly of the UN , along with resolution 1514 of the same organ constitutes the Law applicable to the majority of the cases of decolonization, within which Western Sahara is included, providing that "the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergency into any other political status freely determined by a people constitute modes of implementing the the right of self-determination of that people".
The Moroccan project of 2007 contemplates the celebration of a "referendum", but, is it the referendum that the international legality demands? Two are the key questions. First, the one referred to the "freedom" of the referendum. The second is the possibility of choosing between diverse options.
II.2.A.The Moroccan project of 2007 puts in doubt the "freedom" of the self-determination referendum, it reads "the statute of autonomy of the Region will be object of negotiations and it will be submitted to a free consultation by means of a referendum of the concerned populations" (point 27). However, soon it adds that "To this end, the parties pledge to work jointly and in good faith to foster this political solution and secure its approval by the Sahara populations" (point 28).
What is provided in point 27 can be acceptable like a clever political resource to guarantee a "yes" to the autonomy in the referendum. In effect, if the project submitted to a referendum is the result of an agreement between Morocco and the Polisario Front, it would be politically difficult for the Polisario Front to defend afterwards the "no" option. Difficult, but not impossible. But the greatest problem is raised in point 28, because it presumes that, although the autonomy project has been decided by Morocco with the Polisario Front, this one must be obliged to promote its approval. If the two parts are forced to promote the "yes" where is the equality of opportunities for those who promote the "no"? And without equality of opportunities between both positions, how it is possible to speak of "a free" referendum?
II.2.B.The Moroccan project of 2007 does not allow choosing between diverse options. In effect, the question is: if a possible project of autonomy was submitted to a referendum... what would happen if the result is "no"? The Moroccan project of 2007 does not say anything specifically. And here we must return to the beginning of this analysis.
If the premise was the Moroccan ”sovereignty", the outcome to vote "no" to the integration under form of "autonomy" could be interpreted as an automatic "yes" to independence or as a maintenance of the colonial situation that it would demand to submit to the population a new option (for example, an "associated state") until the colonized people decides its destiny. From this perspective, "no" it would mean either automatic independence or the obligation to submit a referendum of the colonized people a new option. In any case the "no" option can not mean an acceptance of the integration into the colonial metropolis.
However, if the premise was the "sovereignty" of Morocco, the outcome of voting "no" to the referendum would mean that the Western Sahara would continue being part of the national territory on which Morocco exerts its sovereignty. This would be the type of referendums celebrated in Quebec (Canada) or Catalonia or Andalucia (Spain). In Quebec, when one votes "no" to independence, that means a “yes” to the continuation of the autonomous statute of the territory. If in Catalonia in 1979 one voted "no" to the Statute of Autonomy, the result is that the territory would continue legally being a party of Spain under the State central rule. Nevertheless, the Western Sahara is not like Quebec or Catalonia for the simple reason that it is not a territory under the Moroccan sovereignty. The lack of seriousness and consistency of the Moroccan project in its fundamental premises causes that its developments cannot contribute to a "definitive" solution and much less “stable" to the conflict that so many sufferings produces.
III LEGAL CONSTITUTIONAL ANALYSIS OF THE "MOROCCAN INITIATIVE" At the time of analyzing the legal-constitutional seriousness and solution of the "Moroccan initiative" of April of 2007, it is worthwhile to examine several important points: A) the distribution of power between Morocco and Western Sahara; B) the system of resolution of conflicts; C) The organization of the autonomy; D) The guarantee of the autonomy and the Moroccan constitutional system; E) The fundamental rights; and F) The electoral body.
A) The distribution of power between Morocco and Western Sahara.
The distribution of power envisaged in the 2007 project is lacking firmness. On the one hand, the Moroccan 2007 project of autonomy establishes in its points 12 and 13 the competences of the "Sahara Autonomous Region" (SAR) and on the other hand, in points 6, 14 and 15, the competences that would correspond to the Kingdom of Morocco. In the matter of distribution of competences, the 2007 project means a regression regarding the 2003 project.
Firstly, it continues denying the SAR the most important powers given the characteristics of the territory (natural resources, non local police and justice). In effect, just as in the 2003 specifically, the 2007 project attributes these competences to Morocco (point 14).
Secondly, with respect to the "residual competence" (that is to say, the powers that specifically are not attributed to any of the parts) the Moroccan project of 2007 constitutes a clear step back with respect to the 2003 project. In effect, while in the 2003 text the "residual competences" corresponded to the SAR (point 11), in the "initiative" of 2007 that residual competences are undefined apparently but in fact attributed to Morocco. In fact, point 17 of the 2007 project says that "powers which are not specifically entrusted to a given party shall be exercised by common agreement, on the basis of the principle of subsidiarity". However, who decides on the way the subsidiarity principle takes place? That is a question concerned to the way of resolution of conflicts, and as we see, attributes to Morocco the decision on such.
Finally, the "Moroccan initiative" of 2007 contains a huge competential “black hole" in its point 6. What does this point mean? Since "the State will keep its powers in the royal domains, especially with respect to defense, external relations and the constitutional and religious prerogatives of His Majesty the King". And which are those powers? Then, those of art. 19 of the Constitution. And what is this article about? Any minimum expert of the Moroccan political system knows that, article 19 is ALL the Moroccan system, because from that article, absolute powers for the king of Morocco are derived. For that reason, all the debate (today silenced) on the political reform of Morocco lies on the convenience of modifying art. 19 of the Moroccan Constitution, that in itself has been considered like "Super constitution", "implicit Constitution" or "Constitution within the Constitution"(6).
That is to say that the "Moroccan Initiative" of 2007 when attributing within the "Sahara Autonomous Region” absolute powers to the King; it is emptying the "autonomy" of all its content! It is thus more than doubtful that "This initiative is part of the endeavors made to build a modern, democratic society, based on the rule of law, collective and individual freedoms, and economic and social development" (point 3 of the "Initiative" of 2007) and that "thus, the Sahara populations will themselves run their affairs democratically" (point 5 of the "Initiative" of 2007). What "credibility" can this have, there where the King enjoys full authority in front of powers the supposedly "autonomous" organs? Can be described like "serious" an "autonomy" where an organ of the central State has all the powers? Only from the deepest ignorance of the Constitutional Law and the Moroccan political system can be made declarations like those contained in point 6 of the "Moroccan initiative".
B) The system of resolution of conflicts
The "Moroccan Initiative" of 2007 to solve the conflicts between the SAR and Morocco is insufficient because it is not attributed to a neutral organ. The Moroccan project of 2003 contained a provision on the resolution of conflicts, attributing this task to the Moroccan Constitutional Council. The 2007 project follows the same path in its points 23 and 24. It reads that "the high regional court shall give final decisions regarding the interpretation of the Region’s legislation, without prejudice to the powers of the Kingdom’s Supreme Court or Constitutional Council" (point 23) and that "laws, regulations and court rulings issued by the bodies of the Sahara autonomous Region shall be consistent with the Region’s autonomy Statute and with the Kingdom’s Constitution" (point 24).
The same objections that in its day we made to the project of 2003 are to be repeated now again. In fact, "unlike what happened in ‘Baker Plan’ (Peace Plan for self-determination of the People of Western Sahara)(7) where the final decision on the resolution of the conflicts is attributed to a neutral instance (the Secretary- General of the UN), here the ‘competence on the competences’ (which is nothing but the expression of sovereignty) is attributed to an organ, the Constitutional Council(8), controlled by the King of Morocco". As I already exposed(9) the "Constitutional Council" is an organ in which half of its members, including its president (casting Vote in case of tie break), is designated directly by the King. Consequently, it is an organ that does not have sufficient credibility to solve this conflict with impartiality guarantees. To all this the 2007 project has an additional aggravating point. The Moroccan Constitutional Council can judge the constitutionality of the "laws"... but not of the "dahirs" enacted by the King under the art. 19 of the Constitution! Since in the "SAR" the project attributes to the king all the powers under art. 19 of the Constitution, it results then that the exercise of these is not submitted to any control (what is proper of an absolute monarchy).
C) The organization of the autonomy.
The organization of "SAR” established in the 2007 project supposes a regression on what it is provided in the 2003 project. The regulation on the organization of the “autonomous” region is the most evident proof that the project of "Moroccan autonomy", far from contributing to the "democratization" of Morocco as maintained by his propagandist , contributes to close the possibilities for a real democratization of the Moroccan system.
First, concerning the Regional Executive, we remember that the 2001 “Framework Agreement” (Framework Agreement on the Statute of Western Sahara)(10) and the ”Baker Plan" of 2003 provided that the head of the independent Executive would be elected through a popular vote. The 2003 project already gave one step back when establishing that this organ would not be chosen directly by the population, but by members of the regional Assembly (art. 9). Now it is arranged that the head of the Executive should be chosen by the Assembly, even if he were not one of its members (point 20).
Second, the Parliament is composed in a clearly regressive way. While the 2003 project established that all the parliament members had to be elected by "direct universal suffrage", the 2007 project breaks that system opening the way to tribalism. No longer all the members of the regional Parliament should be chosen by direct universal suffrage, now it is only one (undetermined) part ("The Parliament of the Sahara autonomous Region shall be made up of members elected by the various Sahrawi tribes, and of members elected by direct universal suffrage, by the Region’s population", point 19), that does not say at least if it will be the majority.
Third, as already said, all this "Autonomous" organization tears into pieces because of the "black hole" set in the point 6 of the "initiative" ("the State will keep its powers in the royal domains, especially with respect to defense, external relations and the constitutional and religious prerogatives of His Majesty the King"), in relation to already mentioned art. 19 of the Moroccan Constitution. The previous explanation means that the king of Morocco can, at any time, rule over any organ of the "SAR”.
D) The guarantee of the autonomy and the Moroccan constitutional system.
The guarantee of the autonomy of the 2007 project is as fragile as in the 2003 project. Let us remember that the proposals of autonomy contained in the "Framework Agreement" of 2001 and in the "Baker Plan" of 2003 contained a common point: the statute could not be unilaterally modified, neither by Morocco, nor by the organs of the Authority of Western Sahara. In addition, "Baker Plan", and the "Framework Agreement" settled down an international guarantee (France and the USA guaranteed the respect to what is established in the plan). Then, the Moroccan project of 2003 gave one step back and contemplated the implicit possibility that the Statute of the Sahara was modified unilaterally by Morocco after it takes effect. And the same does the Moroccan Project of 2007 that affirms that "the Moroccan Constitution will be reviewed and the autonomy statute will be incorporated to it as a test of its stability and its particular place within the national legal ordering". It happens that when turning the Statute an appendix of the Moroccan Constitution, then it could be modified by who can modify the Moroccan constitution, that is to say, (in theory) by the Moroccan people, unilaterally, without any opposition of the Saharawi people. This means that to give "constitutional" nature to the statute of the SAR, far from supposing a greater guarantee, it leaves the door opened to a unilateral modification on the part of Morocco by means of a reform of the Constitution(11).
And more, it is specially opportune the suggestion of which a project that is "serious" and "credible" had to establish that "the free acceptance of the Saharawi people of an autonomous statute guaranteed by the United Nations (...) could only be modified by the same established procedure" for its approval(12), which is not the case of the Moroccan project of 2007.
E) The fundamental rights.
On fundamental rights, the 2007 project lacks all credibility. Both, the "Framework Agreement” and the “Baker Plan" contained clauses of guarantee of the fundamental rights of the population of Western Sahara. Those clauses had credibility because those proposals had a solid guarantee. The 2003 project, nevertheless, did not mention this question.
The 2007 project contains a clause on the fundamental rights, but its writing is weakened by the actual socio-political context as it has been stated by the United Nations. The project says that "the Region’s populations shall enjoy all the guarantees afforded by the Moroccan Constitution in the area of human rights as they are universally recognized" (point 25). However, what "guarantees" give the Moroccan Constitution? After the outbreak of the "Intifada for independence"(13), according to the High Commissioner of Nations United for the Human rights (UNHCHR), no one. In fact, it is so hard the repression triggered against the civil population of the occupied Western Sahara that the Secretary General of the UN decided to send a mission of UNHCHR in May of 2006 to evaluate the real scope of the facts. The UNHCHR finally elaborated its report, overwhelming, on the violations of human rights by the Moroccan authorities in the Western Sahara territory under their control. That report, has not been rendered public due to pressures from Morocco and France, although it’s content has been filtered to the public opinion(14). To the light of these facts, reported by a neutral and official instance of the United Nations, the disposition of the Moroccan project of 2007 is a true sarcasm.
F) The electoral body.
The Moroccan project does not define the electoral body leaving the door open to interminable delaying techniques that prevent putting into practice the Saharawi autonomy once the United Nations have possibly recognized the "Moroccan sovereignty" on the territory. The first solution for the conflict of the Western Sahara agreed upon by Morocco and the Polisario Front was the "Peace Plan” of 1988(15). Nevertheless, it is known that this "Plan" underwent numerous delays and a final abortion because of the electoral body. In fact, although the Security Council endorsed the plan in 1990 and 1991, the preparation of the census, initially anticipated for months was delayed 10 years. When, finally, in January of 2000, the UN finished the elaboration of the census and the referendum was imminent, Morocco put reverse gear.
Indeed because the census is one of the main problems of the conflict, the 2001 "Framework Agreement”, the 2003 “Baker Plan” and the 2003 Moroccan Autonomy Plan contained clauses that defined the electoral body precisely in order to avoid any delaying tactics. The Moroccan project of 2007 does not contain any clause on the census, which is left for new negotiations. This is a new "black hole" in the Moroccan project. As a good connoisseur of the subject said, knowing the history of the conflict, the possibilities of reaching an agreement by means of negotiations are rather little (as suggests the Moroccan project) in the electoral body(16). Although also it would be possible to be said that, given the history of the conflict, suggesting to reach an agreement on the census by means of negotiations is a way to prevent even the existence of an autonomy. Something that, clearly, puts in doubt the credibility and seriousness of the Moroccan project.
CONCLUSION The Moroccan project of 2007, from the International Law view point, although contains the clear acceptance of the self-determination principle, (what it supposes an "effort" from Morocco), contains incompatible clauses with this principle. From the perspective of the Constitutional Law, nevertheless, an analysis of the diverse elements of the "Moroccan Initiative" (the distribution of powers between Morocco and Western Sahara; the system of resolution of conflicts between the two instances; the organization of the autonomy; the guarantee of the autonomy and the Moroccan constitutional system; the fundamental rights; and the electoral body) constitute a regression in respect to the project presented by Morocco in December 2003 and it is, in any case, also a step back regarding the provisions contained in the 2001 "Framework Agreement" and the 2003 "Baker Plan".
(7) The text of the “Baker Plan” was published as Annex I of the Secretary-General report to the Security Council (S/2003/565), from May 23th 2003. It could be read in: http://www.arso.org/S-2003-565e.htm#planB
(10) The text of this “Framework Agreement” was published as Annex I of the Secretary-General report to the Security Council (S/2001/613), from June 20th 2001. One may read it in: http://www.arso.org/S-2001-613.htm#framework
Since 1975, three quarters of the territory of Western Sahara has been occupied by Morocco. A majority of the population is still living in refugee camps in Algeria. Those who remained in their homeland are subjected to serious harassment from the Moroccan occupiers. For more than 40 years the Sahrawis have been waiting for the fullfilment of their legitimate right to self-determination.
Give a donation!
Support the Support Committee. Help us work for the Sahrawi people's struggle for self-determination. Give a donation here.