The acceptation of the unitary structure of the nation-State, founded as it is upon the absolute sovereignty of the social group that represents the majority community, is conducive to tension; nay, to conflicts, and is not capable of securing peaceful coexistence in States manifesting a multinational orientation, the reason being that the claims of minority communities are oftentimes perceived as a threat for centralised States.
Besides, the call into question of border delimitation appears to be quite impossible in the present international legal order, and is bound to lead to bloody wars in the concerned regions.
Thus, should one firstly consider the fact that the modification of border lines is not amenable to a concerted situation, and that secondly the acceptation of the unitary nation-State is not capable of adequately satisfying the aspirations of minority communities, it remains that the implementation of one of the various forms of autonomy could indeed be a viable solution as well as a factor of stabilisation.
Autonomy implies a sharing of power on the basis of some consensus between a majority and a minority/ies. Its roots can be pinned down in the concept of subsidiarity, which amounts to saying that in case the local or regional power can secure some more management efficiency than the central Power, decisions have then to be made at the local and regional levels.
Though it is devoted to regulating an international statute, the notion of autonomy comes to be anchored in the internal legislations of States, and is endowed with a constitutionalised regime.
Indeed, national constitutional provisions have always asserted the indivisible nature of the State, and have expressly prohibited whatever recourse to secession. However, the indivisibility of the State ought not to be mixed up with its unitary character, which is compatible with regionalism and federalism. This is what readily transpires from the Spanish (Article 2) and Italian (Article 5) Constitutional texts, respectively.
In order to render the political bifurcations of autonomy more graspable, it appears of capital pertinence here to centre our development on the place that the notion of autonomy occupies within comparative constitutional organisation (I), the objective being to perceive, in a second point, the notion of autonomy in « The Moroccan initiative for Negotiating an Autonomy Statute for the Sahara Region » (II).
I. The notion of autonomy in the eyes of comparative constitutional law
The constitutional laws in force, coupled with the rulings of Constitutional Courts and such equivalent bodies, have been able to disengage a juridical meaning, as well as a jurisprudential breath, for the notion of autonomy, way before the French legislator could add thereto the most successful concretisation in the world.
The constitutional contribution to the definition of the notion of autonomy has been had by means of tracing, as it were, the contours of some adjacent concepts. Such is the case of territorial integrity; or self-determination still.
Firstly, the national constitutional law has been highly favourable to the maintenance of territorial integrity. In fact, as far as we can determine, considering the plethora of Constitutions that we have studied, not a single Constitution expressly mentions the right to secession; nor does it do so to any comparable political practice. Silence could suffice to prohibit secession. In point of fact, in the absence of a Constitutional provision allowing for secession, the latter appears to be hard to conceive within the framework of the existing juridical order.
Yet, Constitutional revision is a reserved domain, save when a special norm provides for the unity of the State (article 288-a of the Portuguese Constitution) or for territorial integrity (article 184-1 of the Constitution of Romania, and article 157 of the Constitution of Ukraine), all of which constitutes a material constraint upon the revision of the Constitution. Oftentimes, a constitutional revision that interferes with the unity of the State is tangibly provided for by the Constitution, but may be rendered more difficult by the exigency of popular vote. Such is the case of the Croatian (article 87-2) and Moldavian (article 142-1) Constitutions.
Secondly, the importance attached by national constitutional laws to the maintenance of the territorial integrity of States does not; however, exclude the right to self-determination in the constitutional domain.
Oftentimes, the Constitutional provisions relative to self-determination make reference to the external self-determination of the State in question, to its right to independence, as well as to its place within the international Community.
Hence, the preamble of the German Constitution makes reference to « the unity and liberty of Germany in free self-determination», which concerns internal self-determination as well as the external self-determination made possible by the reunification
In France, the Constitutional revision of 28 March 2003, which was completed by the law relative to the overseas programme of 21 July 2003, recognises the existence of «overseas populations» (article 72-3), as well as of two cohabiting juridical regimes:
Legislative identity, provided for by article 73 of the Constitution, means that national laws and regulations are applicable therein with full legitimacy;
Legislative specialty and autonomy, as expressed in article 74 of the Constitution, in terms of which each collectivity could freely and democratically be governed by its elected representatives, as well as by referendum. This statute transfers to the local collectivities some prerogatives that bear upon civil law, the labour laws as well as taxation.
These constitutional references do not constitute topical news; already, and immediately following the proclamation of the Fifth Republic, the preamble of the Constitution of 1958 contains two sentences, one destined to France as a whole, while the other serves to complete the first with respect to overseas territories. According to the first, « the French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty...»; for the second, « ... in pursuance of these principles, as well as that of the free determination of peoples, the Republic offers those overseas territories that manifest the will to adhere therein to some new institutions...».
It is, however, to a people that the right to free self-determination is recognised. The constitutional Council has on several occasions recognised the principle of the unity of the French people. Apropos of Corsica, most notably, the fact is that, in the name of this very principle of unity, it has banned (Decision of 9 May 1991) the expression «the Corsican people» (a constituent of the French people). It logically transpires herein that, in every which French country overseas, there is a people considered to be distinct from the French people, despite the fact that it is part and parcel of the latter. The principle of the unity of the French people has value for the metropolis, hence for Corsica, but not for the overseas populations.
There follows then a fundamental consequence: the overseas populations could be called upon to elaborate their own laws. The constitutional Council has then admitted the validity of local referendums. In this vein, the referendum that was organised in 1987 in New Caledonia offered the populations concerned the choice between secession and a new statute within the Republic. Those that were subsequently organised in New Caledonia, bore upon the so-called Nouméa Accord, which was concluded in Mayotte between the French government and the Neo-Caledonian political formations, and which addressed some preliminary remarks concerning a series of governmental proposals.
II. The notion of autonomy as apprehended by the «moroccan initiative for negotiating an autonomy statute in the sahara region»
The autonomy plan proposed by Morocco to the UN constitutes a serene as well as realistic solution towards breaking away from the impasse of the Sahara affair. It is the by-product of many a consultation between the Sahrawis within the Royal Advisory Council for Sahara Affairs (CORCAS). The latter, whose composition takes into the fold all the tribes of the Sahara, has established a road-map that was submitted to the Sovereign, the objective being to prepare an autonomy project which integrates the cultural, historical as well as economic specificities of the provinces of the South. It was in concert with all the parties concerned that the Kingdom of Morocco, following a Royal initiative, presented then the Project of autonomy for the Sahara.
This proposal, which enjoys great support on the part of the international Community, is absolutely not the outcome of haphazard. On the contrary, it is inscribed within the continuum of efforts that have been deployed by the Kingdom in order to make known the ‘Moroccanity' of the Sahara.
According to the jurists Hannum and Lillich, autonomy is « independence of action at the internal level, and foreign affairs and defence are normally in the hands of a central or national government, but the autonomous government would occasionally have the power to conclude international agreements that concern cultural or economic affair». This definition is in keeping with the spirit of the Moroccan Initiative, which would have as a credo: «think global, act local».
Indeed, at the global level of the State, the attributes of sovereignty of Morocco are preserved.
At the local level, the attributions devolved upon the future Sahrawi Parliament will have a direct impact upon the development of the provinces, as well as on the model of growth that they wish to adopt in the sectors of tourism, fishing, agriculture or investment. The Parliament of the autonomous region of the Sahara will be composed, as specified in point 19 of the autonomy Plan, of members elected by the different Sahrawi tribes, as well as of members elected by direct universal suffrage by the entire population of the region.
On the judicial plane, the autonomy of management is equally expressed in the creation of courts of law in charge of ruling on local affairs, in addition to the conflicts emanating from the application of regulations created by the regional institution. The jurisdictional order equally comprises a Higher Regional Tribunal which gives its last instance rulings on matters pertaining to the interpretation made of the law of the region.
Earnestly desirous to respect equilibriums, national solidarity will be mobilised towards providing support to the provinces of the South, without interfering with the model of development chosen by the bodies representing the autonomous leadership. In this regard, a Head of Government, as mentioned in points 20 and 21 of the autonomy Plan, elected by the regional Parliament, and invested by the Sovereign, will be tasked with representing the State in the region.
In a liberal and authentic manner, the populations of the provinces of the South will be called to ratify the autonomy Project through a local referendum. An expression such as this, which is indeed stipulated by point 8 of the autonomy Plan, confirms an explicit commitment on the part of Morocco to abide by the provisions of the United Nations Charter, and more particularly the principle of self-determination.
At the national level, given the necessity to reform the Constitution so that the concept of autonomy be integrated therein, all the Moroccan people will equally be consulted through referendum.
Morocco then produces ample proof of its total availability; especially its affirmation to remain a member of the United Nations, acting it does indefatigably for the triumph of the principles listed in the Charter of this Organisation.
At all events, if the stakes of the Moroccan Plan for autonomy derive above all from geopolitics as well as from considerations relative international and constitutional law, it remains that Morocco is nonetheless fortified in its position as well as in its choices.