Self-determination, or the right of peoples to self-determination, which are oftentimes, if not always, used in an indiscriminate manner, mean in the politico-institutional literature of the United Nations, as well as in the doctrine, four things: independence, association to an independent and sovereign State, integration within an independent State and, finally, «the acquisition of any other political statute that is freely decided upon by a people.» Let us note; however, that the United Nations has never provided a definition for the term "people". 

As to UN law, the fact is that it is drawn from the provisions relative to the Charter, as well as to the resolutions that have been adopted by the UN various bodies, resolutions that are completed, when need be, by a number of Pacts that address the same issues, in addition to the practices of the United Nations, when it is a matter of putting into practice these plans of action on a case by case basis. Recourse will equally be made in this respect to the jurisprudence of the International Court of Justice (henceforth ICJ) in so far as the latter is oftentimes solicited to provide clarifications on legal questions. 

I. UN Law Having Connection with the Principle of Self-Determination

The principle of self-determination, or the right of peoples to self-determination, is related to the dissemination of liberal ideas in 19th century Europe and, more particularly, to the proclamation, in France, of new democratic principles.

The principle of self-determination would be re-appropriated, as it were, by the UN through, on the one hand, the provisions of its constitutive Pact and its normative production and, on the other hand, through the decisions made by its judiciary body; namely, the ICJ. 

A. The Charter and Resolutions

We will successively address what the UN Charter stipulates, the efforts deployed by UN through its resolutions, either to interpret or specify the content of this principle, and, finally, the mention made of the latter in certain international Pacts.

1. The Charter

Two articles in the Charter mention this principle; namely, article 1 and 2, and article 55. What do they contain then? 

Article 1 specifies, in its second paragraph, that the UN has for a mission «to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace ».

Article 55, in turn, states that «with a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote» a certain number of objectives; namely, the rise in living standards, the solution of social and economic problems, in addition to the effective respect of Human rights and fundamental liberties.

2. The Resolutions

Ever since the end of the fifties, the second wave of decolonization, coupled with the pressures emanating from the newly independent States, had to push in the direction of a certain ascription of the quality of jurisdiction to this principle.

The point of departure of this principle was Resolution 1514, of December 1960, relative to the Declaration on the granting of independence to colonial countries and peoples.

At the beginning, this declaration did not include any proper provisions that are such as to secure its application. One had to wait for the following year in order to see the creation of a special Committee, which was later to be called the Committee of 24, or the Decolonisation Committee, whose mission was to study, for each case that was submitted to it, the eventual application of this declaration. 

Following the adoption of resolution 1514, resolution 1541 (December 15, 1060), entitled: «principles which should guide members in determining whether or nor an obligation exists to transmit the information called for under article 73e of the charter », has tried to specify the modalities of exercise of the right of peoples to self-determination. It retained three such modalities: 1) independence and sovereignty; 2) the free association with an independent State and 3) integration to an independent State.
In 1970, Resolution 2625 (October 24), entitled « Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations», while confirming the three afore-mentioned options, added a fourth one; namely, «the emergence into any other political status freely determined by a people» (Paragraph 4, Principle 5).

Such are schematically the fundamental resolutions on matters of self-determination, or the right of peoples to self-determination.

3. The International Pacts Relative to Human Rights

Having been adopted in 1966; that is, within the wake of the decolonisation movement of 1960, and for the majority number (the old colonised countries of Africa and Asia), the UN Covenant on Civil and Political Rights and the UN Covenant on Social, Economic and Cultural Rights could not, of course, but echo the General Assembly resolutions (notably 1514 and 1541) and, by the same token, bestow on them more credibility, more support; or, even a sort of sacredness. 

It is thus that article 1 of paragraph 2 of the two Pacts stipulate that « all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development ».

How about the contribution of the judiciary organ of the United Nations; namely, the ICJ?

B. Jurisprudence

The ICJ had the occasion to recall as well as confirm the principle of self-determination and the right of peoples to self-determination in three important affairs:
 

  • The Namibia affair:
    In its Advisory Opinion of June 21, 1971, the Court declared that «...the present evolution of international law regarding the non-autonomous territories, such as it is established by the UN Charter, has made self-determination a principle which is applicable to all its territories... Another stage in this evolution has been the Declaration on the granting of independence to colonial countries and peoples, which is applicable to all the peoples and to all the territories that have not acceded to independence».
  • The Western Sahara affair :
    In the penultimate paragraph of the Advisory Opinion of October 16, 1975, one could read the following: « thus the court has not found legal ties [between, on the one hand, the Western Sahara and, on the other hand, the Kingdom of Mauritania and the whole of Mauritania] 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».
  • The East Timor affair:
    In its Adjudication of June 30, 1995, while rejecting the request made by Portugal, reckons the latter's justified position on what concerns people's right to self-determination: «Nothing can be said again about Portugal's assertion that the right of peoples to self-determination, as it developed from the Charter as well as the practices of the UN, is an opposable right erga amnès (opposable to third parties). The principle of the right of peoples to self-determination has been recognized by the United Nations as well as in the Court's jurisprudence...; such is one of the essential principles of contemporary international law».
II. The Practice of the UN in the Area of Self-Determination

The practice of the UN has been diverse and multiform for two fundamental reasons: on the one hand, the specificity of the scenarios and, on the other, in view of the ambiguity of international law itself on matters concerning the regulation of the procedures of consultation with the interested populations, which keeps the right to self-determination, according to the quasi-totality of authors, unorganised. Besides, the right to self-determination runs up against yet another much older principle which takes up the same "sacredness," not to say that it goes beyond it; namely, the principle of territorial integrity and the prohibition to dismantle the constituted State. It was thus in the case of Biafra that, for example, the UN aligned itself on the position taken by the Organisation of African Unity (OAU) by defending the preservation of the unity of Nigeria. 

In the case of the Sahara, the UN seems not to have taken into account the positions of Morocco, formulated as they have been ever since 1963, at a point when the Western Sahara was claimed at the same time as the city of Ifni. And though the two affairs were dissociated in 1966, Morocco continued to claim the two. It could win its case in 1969 as concerns Ifni, but the case of the Sahara had remained in abeyance up until the year 1974, the date when the ICJ advisory opinion was solicited. It is appropriate here to raise a major question: if the United Nations was sure about the existence of a Sahrawi "people," why did the General Assembly bail out the request for an advisory opinion which Morocco, along with Mauritania, made and obtained?

III. Autonomy Statute and Self-Determination: the Case of Morocco

 
In April 2007, the political authorities in Morocco submitted to the UN bodies "the Moroccan Initiative for Negotiating an Autonomy Statute in the Sahara Region" in order to put an end to this conflict which has been dragging on for thirty years now, and one of whose protagonists - the Polisario-is supported from outside by Morocco's neighbour, Algeria. It was indeed on the latter's territory that this separatist movement took up residence, taking advantage as it does from Algeria's political and financial; nay, even direct military support for a certain period of time (the battle of Amghala in January 1976).In order to overcome this situation, while being on the same wavelengths as « international legality, the Charter of the United Nations and the resolutions of the General Assembly and the Security Council » (Point 27 of the Moroccan Project of Autonomy), Morocco initiated a proposal that seeks to « 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 » (Point 33 of the Moroccan Project of Autonomy) and finally « As the outcome of negotiations, 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» (Point 8 of the Moroccan Project of Autonomy).
Several foreign authors, journalists and politicians ignore the real history of what we call "Western Sahara," making as they do grievous mistakes. It is worth reminding them of certain evident facts:
 
  • The case of the Sahara cannot be compared to that of East Timor, which has been occupied by the use of force. Morocco organised a peaceful March - "the Green March"-at a time when the occupying Power could still be found on the spot, after the ICJ had rendered its opinion. And it was only after the Madrid Accord between Spain, Morocco and Mauritania (November 1975) that the Moroccan forces settled in the northern part which was theirs.
  • There is a knowingly kept amalgam between "secession" and "self-determination," which is dangerous; we have seen what became of Europe after the splitting up of Yugoslavia!
  • Would it be reasonably admitted that the Polisario, which was created only in 1973, could change into a State in 1976, that is, in the space of less than three years, without being able to satisfy one of the fundamental conditions for the birth of a State; namely, a territory? The territory in question is, as all the world knows, under the control of Morocco, a fact which compelled the Polisario to go settle in the south of Algeria.
  • Finally, could one imagine, even for an instant, and on another plane this time round, that of strategic interests, that Morocco could accept the creation of a "SADR" which would pluck it out, as it were, of its African origins? Better still, would it accept the birth of a "SADR" which, tomorrow, in association with Algeria, yesterday's "protégé," will be swallowed up, as it were, by the latter in order to realise the geo-strategic schemes that it has always nurtured: to encircle Morocco and push it towards the sea?

This is precisely why if the Moroccan Initiative is rejected, the Sahara conflict will be here to stay, and for quite a long time. The latent logic of war can only cause a stir and a concomitant instability in the African North-West. More than anyone else, the great superpowers have to know this, and to act accordingly in order to avoid chaos.

Hammad Zouitni
Professor at the Faculty of Law, Fes
 

02/10/2012