While the question of the Western Sahara appears to be on its path towards being resolved, the reason being the fact that the antagonistic parties have at last consented to sit together and start direct negotiations, the meetings that were held between Morocco and the POLISARIO in New York on June 18 and 19 have not drawn level with hopes and expectations. Certainly, the United Nations had their say on the organisation of these talks. Having said that, the Security Council asked that the parties "to enter into negotiations without preconditions in good faith, taking into account the developments of the last months, with a view to achieving a just, lasting and mutually acceptable political solution, which will provide for self-determination of the people of Western Sahara." Notwithstanding, the negotiations that have been entered into have come to no concrete solutions. And by way of avoiding the use of the word ‘failure,' the parties concerned have; nonetheless, announced their postponement of talks for the month of August.

This said, a brief overview of the Moroccan historical position appears to be useful for a better understanding of the mechanisms, the connections as well as the probable outcome of the question of the Sahara in light of the present mutations that have occurred in relation to the process of a definitive settlement of this latent conflict which is costly for the whole of the Maghrebi populations. Morocco has remained faithful to its theses concerning the ‘Moroccanness,' so to say, of the Sahara, for ever since its accession to independence, it indefatigably worked towards liberating the rest of its territories still under foreign occupation, including the Sahara.

Though it has "for a long time known how to defend its sovereignty, Morocco, paradoxically came to find itself at the time of decolonization with the smallest territory -- except for Tunisia-at the Saharan perimeter: Mauritania, Mali, Algeria, Niger, Libya, Chad, Egypt and Sudan all possess otherwise vaster surface areas. Morocco is also the only one country to have been jointed by the colonial powers: Tangier (international zone), northern zone (under Spanish protectorate), southern zone (under French protectorate), Ifni (a Spanish enclave), Tarfaya, Saguiat el-Hamra and Rio-de-Oro zones (under Spanish administration), not to mention the fortified constructions built on the Mediterranean coast such as Ceuta and Melilla, which have been occupied by the Spaniards since the fifteenth century." As concerns the Tindouf region, France, whose control spread over to the regions adjoining the frontiers, fixed the lines of this region in accordance with its own wishes: it "settled matters in favour of the French departments of Algeria, albeit at the detriment of the Moroccan protectorate."

Once it acquired its independence in 1956, Morocco began to be preoccupied by the realisation of its reunification. On the one hand, it claimed from Spain the territories that it had charge of, notably the Western Sahara and, on the other hand, it claimed from France the restitution of Saharan territories (Mauritania). Besides, Morocco came out of the state of decolonization as the great loser compared to its neighbours, the fact being that the other North African countries had obtained considerable geographical shares, which was not the case for Morocco, an old empire.

A founding member of the OAU (Organisation of African Unity) in 1963 in Addis Ababa, Morocco puts forward as a condition sine qua non its reservation on the principle of border intangibility, as concerns the Moroccan territories that were still under foreign colonial occupation. It was thus that, having been certain of its just cause, Morocco had already raised the issue of recuperating the Saharan provinces of the south.

As far as its claims for the restitution of the Sahara to the mother-land, the position of Morocco is quite clear, ever since the first summit that was held by the OAU, which was nothing short of the outcome of the combined efforts of the two camps that were then on the scene-progressive and moderate. On the one hand, the progressive camp, that of Casablanca, rallied such States as Morocco, Egypt, Mali, Guinea and Algeria (which was then still at war) and, on the other hand, the moderate camp, that of Monrovia, which brought in together such States as Ethiopia, Libya, Tunisia, Liberia, Nigeria, Togo and Sierra-Leone. Both these groups instituted in May 1963, in Addis Ababa, the OAU, whose one of the earliest principles to have been adopted was the intangibility of the borders that were inherited from colonialism. The Moroccan delegation formulated its "express reservations with regards to this principle and adhered to the AOU Charter only after having expressed its reservations in writing, which marked the limits of Morocco's adherence."

In accord with Article 2, § 1. d, of the Vienna Convention on the Law of Treaties (1969), the expression 'reservation' means "a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to those States." In other words, a State which seeks to be a party to a treaty could chose "between two attitudes": either refuse to be bound by this treaty so that it shuns the application of the set provisions; or, in order not to sever all ties, consents to be bound by the treaty, but declares at the same time, whether it purely and simply discards those provisions that do not square with its consent; or that it shall give those provisions a particularly acceptable meaning. Should this State opt for this second attitude and make such a declaration, one shall say that it formulates reservations about these provisions." However, reservations have a judicial effect only when they are accepted by at least one State party to the treaty. The fact is that the Vienna Convention simplified the overall procedure by endorsing the tacit acceptance of the reservation within a deadline of one year after its formulation, should there be no objection in the meantime.

The principle of border intangibility about which Morocco has formulated its reservations finds its roots in the 19th Latin-American practice where the newly-established States opted for the principle of delimitation known as uti possidétis juris. In fact, this principle, "which was initially recognized within the framework of the settlement of the problems of decolonization in Latin America and Africa, constitutes today a principle of general character, one that the right to self-determination cannot take in check." The principle implies the upkeep of administrative borders as they are left by the ex-colonizer. This being the case, the adoption of the above-mentioned principle by the AOU was meant to guard the African States against any eventual wars around border issues. Of immediate relevance here is the question that ought to be raised as to how it was that the AOU, by watching over the avoidance of potential border conflicts; inter-state conflicts, that is, came, through its uncompromising attitude, to reap the harvest of discord within these same States. In consequence, one notices the proliferation of inter-state conflicts whose origins can be traced back, on the one hand, to the hasty and secular partitions borne out of the conference of Berlin in 1884-1885 and, on the other hand, to the position of the AOU as regards the intangibility of borders inherited from the colonial period.

It is worth recalling here that the earliest border conflict to have been laid out before the AOU was that opposing Morocco and Algeria, a propos of the Tindouf region. The War of Sands (guerre des sables), which broke out in 1963, put the newly-established organisation to the test. A special commission which emanated from the Council of Foreign Affairs Ministers-- during an extraordinary session that was called for by the AOU between November 15th and 18th, 1963-was tasked with the responsibility of treating the causes of the conflict and offering concrete solutions towards its settlement. Finally, the AOU succeeded in getting the two States to sign in the year 1972 several agreements relative to the settlement of the border problem.

One can say here that the development of political relations between Algeria and Morocco had a great impact upon the global evolution of the Maghreb region, and more particularly on the liberation of the Moroccan Sahara. The antagonism obtaining between Algeria and Morocco, which was nurtured by the ideological conflict between the East and the West, has largely contributed to the freezing, so to say, of the definitive settlement of the question of the Sahara. It is equally worth highlighting here the weight of Algerian diplomacy at that epoch with African States, notably within the AOU. In other words, "between 1976 and 1984, Moroccan diplomacy had to confront the "pressing" policy of Algeria in Africa, a policy which culminated at the time in successive recognitions of "SADR" (Sahrawi Arab Democratic Republic) by a number of African States and, by further implication, led into a series of diplomatic ruptures between Morocco and a number of these same States."

Let us recall in this respect that "SADR" was proclaimed by the Polisario on November 26, 1976, shortly after the signing in Madrid of the tripartite treaty between Morocco, Mauritania and Spain, on November 16, 1976, in terms of which the latter would surrender the Sahara province to the former two countries. This commitment on the part of Spain to vacate the Sahara came as a response to a logic of the period: the organisation in 1975 of the Green March, the rendering of an advisory opinion by the International Court of Justice, Franco's agony, etc. It was amidst this climate, already rife with tension, that the shadow of war appeared to cast itself on the region of the Maghreb.

The AOU, which endorsed the admission of "SADR" within its confines in 1984, has violated its proper Charter. Article 4 stipulates that "each independent and sovereign African State could become a member of the organisation" Simply put, did "SADR" meet the conditions of this article? Besides, how come that the AOU could hold up against this provision in order to allow for the admission of "SADR" as the full-fledged 51st member? A so hostile an attitude as that of the then AOU General Secretary, the Togolese Edem Kodjo could explain, albeit in part, the unfavourable attitude of the African position towards Morocco.

Moreover, the incoherence of the AOU resulted in leading this organisation towards failing its initial mission; namely, offering to act as a mediator between the belligerent parties, without any bias for or against either one of them. However, in lieu of preserving its neutrality, it chose to involve itself in this dossier, a fact which triggered off the withdrawal of Morocco from the organisation as well as the dropping of the question of the Sahara from its agenda, and its presentation to the United Nations. The fact to be borne in mind is that during the Nairobi summit, which was held in 1981, Morocco manifested its intention to settle the question of the Sahara, when the late Hassan II declared Morocco's acceptance to take recourse to referendum. However, AOU's about-face obliged Morocco to withdraw in 1984, and to go to the United Nations where it could present its dossier, a fact which would allow it to shun whatever complications that might stand in the way of a settlement. Ever since then, Morocco has ceased to partake of the works of both the AOU and the African Union (AU), which has continued to adopt the same policy regarding the question of the Sahara.

Once the dossier was submitted to the United Nations authorities, it was examined as much by the General Assembly, in charge of decolonization issues, as by the Security Council, accountable as it is for questions of peace and security. Besides, while cooperating with the AOU, which from then onwards, held only a secondary position as regards the management of this dossier, the United Nations ratified some of the decisions that were adopted by the AOU. The fact is that in 1988, it proposed to the parties concerned a plan of settlement of the question at hand. Later, a set of resolutions were adopted by the Security Council which invited the parties concerned to reach agreement over the process of settling the conflict, including the organisation of a referendum as a means of resolving the afore-mentioned conflict. In fact, a special envoy of the United Nations to the Western Sahara was appointed for this express purpose. He gets assisted by a support group, known as the MINURSO (UN Mission for the Organization of a Referendum in Western Sahara), which is composed of military, civil and security units.

Nevertheless, events took a new twist, as the parties concerned did not share the same conceptions in connection with referendum. As a result, divergences were amplified that had repercussions on the stalling of the settlement of the question. However, the proposals that were made towards settling the problem, which were presented by the different parties concerned, albeit not resulting in unanimity, were not lacking. The last Moroccan proposal relative to the project of autonomy in the Sahara region within the framework of the sovereignty and the territorial integrity of Morocco was presented to the Security General on April 11, 2007. The proposal did not only mobilize, as it were, the dossier on the international plane, but has equally laid the groundwork, through the organisation of direct negotiations between Morocco and the Polisario, for the eventuality of a real as well as a definitive settlement of the question. It was within this frame of logic that a Moroccan delegation went over to Accra with the aim of laying out the position of Morocco to the African leaders that were present at the 9th A.U. Summit at the beginning of July, 2007. On the same occasion, Morocco reaffirmed its readiness to participate in the second round of negotiations, which are scheduled for this next August, always with the same good faith as well as with the sincerest will, the ultimate aim being to arrive at a political and definitive solution to the Sahara dossier and, by the same gesture, restore peace and stability in the whole region.

Aicha Ouasmine
Professor-Researcher- Faculty of Law, Souissi-Rabat

02/10/2012