A customary principle up to the end of the 19th century and the beginning of the 20th, the peaceful resolution of disputes came to witness the beginning of codification with the Haye Conferences of 1899-1907.

 Twenty years later, the development of this principle had to be strengthened, albeit outside the Society of Nations Pact (SDN), by the recognition of yet another principle; namely, that of the prohibition of the use of force (the Briand-Kellog Pact, 27 August 1928).

 

Later, with the elaboration of the United Nations Charter, these two principles would find the right of place, side by side indeed, (article 2, paragraph 3 on the peaceful settlement of disputes, coupled with article 2 paragraph 4 on the suppression of acts of aggression) in view of their similarity as well as complementary objectives.

 

Other acts of a normative character, ones which accrue from the General Assembly of the United Nations, go in the same direction: notably in question here is the Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States (Resolution 2625 of 24 October 1970), and the Manilla Declaration on to the Peaceful Settlement of International Disputes (Resolution 3710 of the General Assembly of 15 November 1982).

 

This is to say that the peaceful settlement of disputes is a fundamental principle of international Law; its concretisation is deemed to be a necessity by all the States, who do not ignore its virtue. The latter is nothing short of the cessation of war, whose outbreak, and above all extension, could have incalculable human as well as material ramifications for the State, should it be the vanquisher and a fortiori the vanquished.

 

In other terms, what one seeks from the establishment of the peaceful settlement of disputes is precisely to avoid seeing crises, declared and latent ones alike, degenerate into armed conflicts. Sometimes, when this fatal result cannot be avoided, the setting in place of a peaceful settlement of conflicts could make it such as not to sink into a state of disrepair; or in any case to curb, as much as possible, the development of hostilities.

 

However, though quite a developed legal system has been provided for both at the international and the regional levels in order to contain conflicts, in reality, the mechanisms provided for cannot go beyond a central core that is made up of the sovereignty of States, the divergence of interests, as well as the intervention of the great superpowers and the manifestation of hegemony.

 

It would here be worth sketching out in broad lines the procedures used for the peaceful settlement of disputes (I), before highlighting the consonance of the Moroccan Project of Autonomy with the ultimate aims of this same principle of the peaceful settlement of conflicts (II).

 

I.         A brief reminder of the procedures of the peaceful settlement of disputes

 

It is appropriate to make an expedient remark here: as procedures, the modes of dispute settlement that tend to establish peace hold in their embryo respect for the reciprocity of interests. The only exception in this vein remains to be the case of decolonisation, where international peace mandated the sacrifice of an interest (that of the coloniser) with no compensation (on the part of the ex-colonised).

 

Hence, the peaceful settlement of disputes tends to bring back the peace by means of solutions that necessitate the prevalence of a sense of compromise.

 

What are then the procedures established for the express purpose of peacefully settling conflicts between States? One distinguishes herein diplomatic procedures and jurisdictional procedures, to which there has to be added a specific procedure which consists in calling for the bodies of an international Organisation in the event a dispute needs to be settled.

 

A.      Diplomatic procedures

 

With the exception of the Pact of the League of Arab States, which limits itself to the procedure of mediation (the Arabic text uses the verb « yatawassatou», which means «to offer one's mediation or one's good offices») all the  constitutive texts of regional Organisations (Organisation of American States (OAS) or the present AU -African Union-; the OIC -Organisation of the Islamic Conference) have nearly the same drafting as in article 33 of the United Nations Charter, from which they have certainly been inspired. The latter stipulates that:

 

«1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

 

2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means».

 

Generally, as concerns this first range of procedures, the fact of the matter is that when the degree of tension allows for the possibility for the States to meet, no matter what the level of representation is, it is the negotiation procedure that is put into practice. However, should this opportunity turn out to be impossible owing to the exacerbation; nay, the explosion of the conflict, negotiation could always be taken recourse to after « clearing away the fields, » as it were, by means of other procedures; namely, good offices (which are not provided for by article 33, but which have been developed through practice by the UN General Secretaries), as well as mediation, investigation or the intervention of the subsidiary organ of the Organisation entitled to this end (for instance: the Inter-American Commission on the Peaceful Settlement of Disputes within the OAS).

 

B.       The jurisdictional procedures

 

More precisely, it is a matter of arbitration and of judicial settlement. It has to be noted that if the recourse to such procedures remains to be voluntary, the solutions that it leads to remain to be; nonetheless, binding for the parties in conflict.

 

Besides, it is worth noting that if the « juridical disputes» lend themselves easily to the recourse to international jurisdictions, be they arbitral or judiciary, because the « the face to face opposition of theses bears upon the interpretation or application of the rule of order in force, » « political disputes, » that is, those that  « no longer concern the application of law, its revision; or the change of territorial or political status, »  are generally settled through negotiations between the parties in conflict; or through arrangements suggested within international organisations, as is the case in fact of the Sahara affair. In this respect, the mobilisation of the latter as instruments to come to peace appears at times to be quite conclusive, a fact which leads us to lay out the third category of the procedures in use.

 

C.      The instrumental role of international organizations

 

We put emphasis on the UN, which is of most interest to us here, because it has a close, even direct, bearing on our subject. As one may remark, the United Nations Charter accords in its chapter VI some competencies to its principal organs (the Security Council and the General Assembly) so that they intervene in the event that « (...) to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security... » (article 33); or in case « (...) or any situation (...)», which seems to endanger the upkeep of peace and international security (article 34 of the Charter).

 

The intervention of the major organs can take up several forms:

 

To make it such that States take recourse for purposes of decision to diplomatic procedures (negotiation, investigation, the good offices of the Secretary General, etc.) or jurisdictional procedures;

To recommend the terms of a settlement (example 1: Resolution 242 of the Security Council of 22 November 1967 relative to the principles of a « just and durable » peace in the Middle East; example 2: the 1988 settlement Plan relative to the Sahara affair);

To propose a framework for mediation (the example of the Manhasset negotiation rounds);

To recommend, with the parties' consent, that the affair be handed over to a regional Organisation (example: Resolution 3222 of the General Assembly of 28 November 1977, which submitted the Sahara dossier before the OAU.

Such is, in very concise terms, the juridico-political system that has been imagined or experimented with by the States ever since 1945 in order to come to terms with their conflicts. Does the Moroccan Project for Autonomy fall within this system? Does it appropriately show its consonance with the aims pursued by the United Nations in their search for international peace and security? That is precisely what we will attempt to lay out in the second part.

 

II.     The consonance of the moroccan project for autonomy with the aims of the peaceful settlement of disputes

 

The Moroccan Project for Autonomy in the Sahara region comes out as the quintessence of some laborious work. The authors who have been at the origin of its conception as well as its elaboration had no doubt worried about coming up with, if not a perfect piece of work, at least a project that suffers least from any probable imperfections, a project that is such as to positively contribute to the peaceful settlement of a conflict that has endured for upwards of twenty years now.

 

It is first of all a project that remains characterized by a spirit of openness so that it could move ahead in the negotiations, and then it is a project that advances a set of concrete proposals towards peacefully resolving this conflict, all on the basis of a host of internationally recognised norms and standards.

 

A.      A spirit of openness to favour trust and negotiation

 

This spirit may be gleaned from several points of the Moroccan Project, notably points 7, 9 and 10. One has to recall here, though, that despite the existence of a UN plan, nearly twenty years old now (1988), to resolve the conflict in Western Sahara, one cannot spare making the remark that the realities have been stubborn. In fact, the difficulties of reaching an agreement on the persons eligible to vote had to permanently put off the settlement process, perpetuating thus a status quo that serves the interests of the protectors of the Polisario more than those of the populations that live-in contrast to those of the territory-under lamentable conditions in the Tindouf camps.

 

One could also say that this status quo equally serves Morocco to the extent that 85 to 90% of the Sahara is made safe and is under control, with the populations attending to their daily tasks. The Moroccan authorities could have rested content with such a situation, less comfortable as it is than that of Algeria, it is true, and left the Polisario «to rebel» to a point of exhaustion, even if they were to foot the bill of and make sacrifices for such a gesture. It was not, however, this option that they had a penchant for; they rather preferred to make a move towards the other, to open up to him, to hold out to him in order to win his confidence, attempting thereby to show him that they indeed take into consideration the claims that come in within what is reasonable; that is, those claims that pertain to the advancement and development of the conditions of existence of the Sahara populations.

 

A platform for discussion has thus been proposed, - and here is an innovation that has been much acclaimed by the Security Council - sealed as it were at the level of its territorial feasibility (because it is conceived with the framework of Moroccan sovereignty), but subtle and perfectible at the level of its implementation. What imports herein is the fact that it guarantees the populations concerned as large as possible an autonomy. This being the case, Morocco continues to privilege the diplomatic means, and to give credit to the instrumental role that the United Nations have, ever since 1988, actively and indefatigably played in this affair.

 

B.       A concrete proposal based on well-recognized international norms and standards

 

As far as norms are concerned, we could make reference to a certain number of aims and principles stipulated in the Charter.

 

Point 1 of the Moroccan Initiative makes reference to the various appeals that have been made by the Security Council with a view «...to end the current impasse and to achieve progress towards a political solution». This amply translates the will that Morocco has for responding positively as well as constructively to a great aim - if not the first aim - of the United Nations Charter (namely, to maintain international peace and security ), as well as to at least two major principles; in this case, the peaceful settlement of disputes and the suppression of acts of aggression. Likewise, Morocco seeks to show that it rejects all bellicose intentions, and that it continues to provide full evidence of self-control not to take up arms in the face of the threats that have been excessively repeated by the Polisario. One could even wonder if this peace proposal was but another follow-up on the policy of constructing sand walls, for was not the latter conceived with a view to limiting the raids staged by the Polisario so that Morocco would not have to respond to its harassments and, by the same gesture, not to perpetuate the acts of war?

 

Point 2 falls within this logic, for it proposes «...an autonomy proposal for the Sahara, within the framework of the Kingdom's sovereignty and national unity». This means, as was recalled by the late Hassan II, that save for the flag, the stamp and the national anthem, everything is negotiable, which suggests that the Moroccan Initiative could be enriched under the sole condition that the framework within which it was proposed be respected.

 

As concerns international standards, it is Point 11 which provides food for thought, as it were, to the extent that it somehow constitutes the foundation of the Moroccan proposal on matters of the peaceful settlement of disputes. It stipulates that «The Moroccan autonomy project draws inspiration from the relevant proposals of the United Nations Organization (...). It is based on internationally recognized norms and standards». What has the United Nations always proposed? To show a real will and determination to come to a political solution that the two parties concerned accept. What are the international standards obtaining in this respect? It is to offer the concerned populations the possibility to have a statute which will be such as to secure the free management of their affairs within the framework of either a large autonomy or within the framework of independence. The latter option, having been discarded by Morocco for historical and juridical reasons (the Madrid Accord of 1975 by which Spain, the occupying power, transferred the Sahrawi territory to the States that had laid claim on it; namely, Morocco and Mauritania at the time), only the first option continues to come within the domain of what could be realisable.

 

As one could observe, the peaceful settlement of disputes has the virtue of enabling the parties in conflict to stay clear of the costs and sacrifices incurred therein both at the political, social, and even material, levels. As such; however, they cannot stall the causes of tension, as long as there exists little will here and there to make the peace of the brave; that is, by accepting to make historical compromises, the ultimate objective for the concerned populations being to lead a decent and dignified life, far from the pangs of war, and sheltered from fear and misery, which is presently the case for the people who live in the camps of the Algerian South-West.

 

All things considered, the modes of peaceful settlement of disputes - the Moroccan Initiative being one - remain useful even when they tend at times more towards sterilising conflicts than resolving them. It appears that the Moroccan Project for Autonomy does not rest content with this only; it aspires to a better achievement: the resolution of the conflict.

 

Hammad Zouitni

Professor at the faculty of law, Fez 

 

25/12/2012