Though Morocco has been from the outset aware of the importance of winning support from the international community regarding the Sahara affair, it did not subject this affair entirely to those external factors that rest upon a battle of wills. It is for this reason that Morocco gave priority to the national reference through the general mobilisation of its citizens, of which the organisation of the Green March is but one of the most salient aspects. Besides, this choice has been found to be corroborated by the historical dimension of the whole affair.

 

Yet, this has not precluded Morocco from taking recourse to external support, too. It was thus that the Moroccan Project of autonomy for the Sahara region tended to include the different conceptions of internal as well as external parties.

 

This international reference is expressly confirmed in the letter that was addressed to the Secretary General of the United Nations, during the presentation by Morocco of its Initiative, wherein it is notably said that : « ...it is [Moroccan Initiative] in conformity with international legality as well as with international norms and standards applicable in the area of autonomy. It guarantees compliance with - and promotion of - human rights as they are universally recognized, and as they are enshrined in the Moroccan Constitution ». It is also more specifically stated in the text of the Moroccan Initiative, precisely in point 11 which stipulates that: « The Moroccan autonomy project draws inspiration from the relevant proposals of the United Nations Organization, and from the constitutional provisions in force in countries that are geographically and culturally close to Morocco. It is based on internationally recognized norms and standards». From this angle, the Moroccan Initiative is grounded in three major international principles: the recommendations and proposals of the United Nations relative to the Sahara affair, comparative constitutional law, as well as international standards relative to the autonomy statute. This is precisely what we will successively examine in the present article.

 

I.         The conformity of the moroccan project to the pertinent proposals of the UN

 

At the beginning, the role that the UN played in the Sahara affair was truly very modest, in view of the circumstances unfolding at the time. However, immediately after the Cold War period, the United Nations began to play a more active role, a thing which translates at the level of the quite important decisions taken by the Security Council. These decisions notably concern military intervention, the maintenance of peace and the creation of international criminal courts, at the head of which is the International Criminal Court (ICC).

 

This revival of UN action has equally engendered some particular interest for the Sahara affair, through several proposals presented to the parties concerned, as well as through the creation of the UN Mission for the Organisation of a Referendum in Western Sahara, commonly known as MINURSO. This new role of the UN came to be further reinforced by the supervision of direct negotiations between Morocco and the Polisario.

 

On the other hand, notwithstanding the divergence of interpretation surrounding the Advisory Opinion rendered on 6 October 1975 by the International Court of Justice, the Opinion constitutes the international legal framework of all the Moroccan Initiatives that seek to find a solution to the Sahara affair. This Opinion has given the Moroccan position credit as to the question of the political, legal and spiritual attachment shown throughout the history of the inhabitants of the Sahara, on the basis of the ties of allegiance (beyâa), to the central powers that have governed Morocco. In question here is a historical situation that differs from that of Europe, which is regulated by some principles of sovereignty that are adapted to its cultural, political and social environment. The conformity of the Moroccan Initiative to the gist of the Advisory Opinion, which has acknowledged the historical ties of the Sahara with the governments that have successively been in place in Morocco, constitutes in itself an important legal reference which reinforces; nay, invigorates the international legitimacy of the Initiative.

 

Within the framework of implementing the role of the UN in the Sahara affair, the Security Council has unanimously adopted Resolution 690 of 29 April 1991, wherein it shows approval for the report by the Secretary General relative to the organisation of a referendum of self-determination in the Sahara, just as much as it approved of the creation of the MINURSO forces.

 

Once the UN had noticed the difficulty of putting in practice the 1991 settlement Plan, the personal Envoy of the Secretary General, M. James Baker, proposed at the beginning of the year 2001 yet another project entitled as «a Proposal for a framework-agreement for a solution to the conflict in the Sahara,» or the «Baker Plan I».

 

Convinced of the difficulty to apply the first Plan, the UN Envoy proposed a second Initiative, so-called « Baker Plan II » in 2003. The Security Council approved in its Resolution 1495 of March 2003 this Plan, which bore the title «Plan of Peace for the Self-Determination of the People of Western Sahara,» a Plan which came to nought owing to the legal faults it suffered from. This is precisely what accounts for the fact that Morocco should take the Initiative to present a daring project that abides by the different resolutions of the United Nations, a Project that bears the name « The Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region». This Moroccan Initiative has unanimously been approved by the United Nations Security Council in its Resolution 1754 of 30 April 2007, a Resolution which expressly applauded the efforts deployed by Morocco in this direction, qualifying as it has the Initiative as being «serious and credible». This praise of the Moroccan Initiative has since then been reiterated, including the last decision by the Security Council; namely, Resolution 1813 of 30 April 2008.

 

The declaration made by the personal Envoy of the UN Secretary General, M. Peter Walsum, at the Security Council on 21 April 2008 certainly reflects the total conformity of the Moroccan Initiative with the general orientation of the UN. In fact, M. Walsum has considered that the independence of Western Sahara is an unrealistic solution as well as an unrealisable objective. He also urged the parties concerned to resume negotiations on the basis of excluding the option of referendum, further asserting that the solution to the Sahara affair resides in an option that excludes the granting of independence.

 

II.     The reference of the moroccan project of autonomy to comparative constitutional law

 

Comparative constitutional law has, to some great length, been able to lift the ambiguity surrounding the definition of the notion of autonomy statute, given that this right is linked to some practical experiences of autonomy statutes. At this level, three categories of autonomy statutes can be distinguished which spring from constitutional practice. The first category is the one organised by the Constitution of the State concerned, which endows the autonomous authorities with a proper justice as well as some exclusive legislative powers (examples: Spain, Italy and Portugal). This category is commonly known as «proper autonomy». The second category is composed of the private statutes of an official constitutional delegation, and concerns the power to create laws with the exception of its own laws (example: Greenland and the Faeroe islands in Denmark). The third category is constituted by the regimes of autonomy that enjoy a determinate constitutional statute, with the attribution of ordinary or administrative jurisdictional competences that depend on the ordinary legislation of the concerned State (example: the Crimea region in Ukraine). According the studies conducted by Markku Suksi, Spain is the only European country that recognised the autonomy statute as a constitutional right (Article 2 of the Spanish Constitution), whereas all the other Constitutions do not recognise the statute of autonomy as a constitutional right.

 

Hence, the Moroccan Initiative appears to be a middle ground type of solution, since it states in its point 29 that « ...the Moroccan Constitution shall be amended and the autonomy Statute incorporated into it, in order to guarantee its sustainability and reflect its special place in the country's national juridical architecture ». The integration of the autonomy statute of the Sahara region in the constitutional text reflects indeed the importance given by the Moroccan legislator to this particular experience.

 

As far as the competences attributed to the autonomous region are concerned, the fact is that there are two cases where the exclusive competences of the central power are listed, when the attributions of the autonomous region emanate from organic or ordinary law. Otherwise, only the exclusive competences of the autonomous region are listed, which implicitly suggests that all the other attributions belong to the central power, be they exclusive to the State or in common bond with the autonomous region. In yet a third situation, one which was equally adopted by the Moroccan project, the exclusive competences of the central power and the autonomous region are laid out in a crystal clear manner; be it in connection with exclusive or conjoined competences, one condition being 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» (point 17 of the Moroccan Project of Autonomy).

 

Besides, the Moroccan Project stands out by the fact that it establishes a statute of autonomy that is the fruit of negotiation as well as the mutual consent of the parties concerned. As to the question of constitutionalising this autonomy, the fact is that it is an operation to be had following negotiations between the parties concerned.

 

III.  The conformity  of the moroccan project of autonomy to universally recognized standards

 

The principle of self-determination is one of the major criteria by which the Moroccan Initiative for an autonomy statute in the Sahara region abides, at the same time as it takes into consideration the specificity of the latter.

 

The concept of autonomy is henceforth in tune with what one calls in doctrine «internal self-determination,» which means the right to exercise political, economic and cultural autonomy within the existing State and, by the same gesture, benefit from large control over the political, economic, social and cultural development of the autonomous region. This is amply reflected in point 5 of the Moroccan Initiative, which stipulates that « ...the Sahara populations will themselves run their affairs democratically, through legislative, executive and judicial bodies enjoying exclusive powers.  They will have the financial resources needed for the region's development in all fields, and will take an active part in the nation's economic, social and cultural life ». 

 

Also, «participative democracy» constitutes one of the main fundaments of the notion of internal self-determination. In this sense, the integration of this notion in the Moroccan project confirms the democratic as well as participative dimension of the proposed autonomy statute. This conception of self-determination has also been stated in the letter that was addressed to the UN Secretary General during the presentation of the Moroccan Initiative. The letter considers that « The initiative [Moroccan Initiative] achieves the principle of self-determination, through a free, modern and democratic expression regarding the autonomy statute».

 

It is worth noting here that in view of the circumstances under which the United Nations was created, the notion of autonomy was not provided for by the United Nations Charter.

 

Yet, the principles of Human rights constitute some of the major criteria upon which the Initiative has insisted, which reflects the seriousness as well as the credibility of the Moroccan project. The Moroccan Initiative has in a crystal clear manner reflected the rights of the inhabitants of the Sahara region to reap the harvest of all the guarantees that the Moroccan Constitution has come up with on matters of Human rights, such as are universally recognised (point 25 of the Moroccan project of Autonomy). By this Initiative, Morocco guarantees to all Sahrawis, both at home and abroad, their right of place and of role, all discrimination apart, in the bodies and institutions of the region (point 4 of the Moroccan Project of Autonomy).

 

On the other hand, the Moroccan Initiative has taken great care, and in a balanced manner so, to square the fundaments of national sovereignty with the exigencies of autonomy, the ultimate objective being to guarantee the permanence of the Moroccan State as an indivisible entity, despite a broad delegation of powers to the benefit of the autonomous region. Thus, the Initiative maintained that the State would preserve exclusive power, notably over the attributes of sovereignty, the flag, the national anthem and the currency, the attributions connected with the constitutional and religious prerogatives of the King, national security, external defence, territorial integrity, and the juridical order of the Kingdom (point 14 of the Moroccan Initiative).

 

Conclusion

 

Despite the importance of the international support given to the Moroccan Initiative, the Moroccan decision-makers have not rested content solely with this reference; from the outset, they sought domestic support for all the initiatives concerning the Sahara affair, beginning with the Green March all the way through the proposal of a referendum, which later proved to be impossible to apply, only to finally arrive at the  autonomy statute Project, which has benefited in turn from the adhesion of all the different political actors in Morocco. It is for this reason that Morocco made use of the international reference as a complementary element in the arsenal of assets that corroborate the legitimacy of its positions. The different national and international dimensions of the Moroccan project stand out in the speech given by King Mohammed VI on the anniversary of the Green March, 6 November 2007, where he asserted : « Morocco presented a bold autonomy initiative which is consistent with global standards and international legality, and which takes into account the region's social and cultural specificities. Our practical efforts were based on a responsible, realistic approach. They have enjoyed wide international support, and as a result, the United Nations has adopted a new approach to our foremost national issue. (...) thus paving the way for the adoption of Security Council Resolution 1754, which singled out the Moroccan Initiative and called it "serious and credible". (...) The Security Council called upon the parties concerned to enter into negotiations with a view to achieving a lasting and mutually acceptable political solution, under the aegis of the United Nations. Thus, Morocco entered resolutely and in good faith into the two rounds of the Manhasset negotiations. This constructive approach received strong support from the United Nations General Assembly, as well as from the Security Council, through its latest resolution 1783 ».

 

Said Saddiki

Professor at the faculty of law, fez 

 

25/12/2012