The concept of Human rights has come to know three generations, each of which has constituted an added-value for the dignity of Man.
The first generation of Human rights corresponds to civil and political rights. It is based on the concept of liberty (political liberty and individual liberty).
Later, civil and political rights were complemented by economic, social and cultural rights. The former had an overly liberal vision, not directly serving the benefits of those who find it impossible to make use of it. The second generation of Human rights was nurtured by socialist thought. The question of equality was at the heart of this apparatus of claims: to confer upon civil and political rights an operational content.
Then, in the 1980's, a third generation of rights surfaced up that was called «the rights of solidarity», such as the right to development, the right to information, as well as the right to a healthy environment. The Human rights of the third generation all hinge around the fundamental principle of equality or non-discrimination.
A close reading of the provisions of the Moroccan Autonomy Project, presented by the Kingdom of Morocco to the Security Council, on 11 April 2007, indicates that the so-called Project has addressed every which aspect of Human rights, ones which will be of benefit to the inhabitants of the provinces of the south. One of the most important points provided for by the Moroccan Autonomy Project is the possibility for the regional parliament to adopt laws that bestow a practical content upon Human rights. Indeed, one cannot dissociate the Moroccan Project from the Moroccan Constitution which categorically expresses in its preamble that Morocco subscribes to Human rights, such as they are universally recognised.
What are then the rights that are acknowledged to the inhabitants of the Sahara by the Moroccan Project of Autonomy?
The present article aims at determining the guarantees that are such as to secure the dignity as well as liberty of the inhabitants of the Sahara region, within the framework of the national sovereignty of the Kingdom of Morocco. In order to achieve this, we will highlight the Human rights provided for by the Moroccan Project of Autonomy, along with the modalities of their implementation, as well as the guarantees that will be such as to help avoid the reproduction of the drama of the Tindouf camps.
I. Civil and political rights in the eyes of the moroccan autonomy project
As has been underlined, the Moroccan Autonomy Project confers upon the inhabitants of the Sahara all the guarantees provided for by the Moroccan Constitution in the domain of Human rights such as they are universally recognised, the objective being to establish a civil line of conduct capable of respecting the personality of each individual, as well as encouraging positive citizenship. The latter allows for control over the action of responsible officials, and contributes to the reinforcement of security and stability in the country.
In view of the Moroccan Autonomy Project and the Moroccan Constitution, and considering the International Covenant on Civil and Political Rights (1966), which was ratified by Morocco on 3 March 1979, one notices that the inhabitants of the South will greatly benefit from several rights.
As concerns civil rights, let us cite in the first place such fundamental rights as the right to life, the right to equality before the law and justice, the right to non-discrimination, the right to partake of public responsibilities, and the right to liberty. This liberty does not only mean the prohibition of all forms of slavery, but also the struggle against prostitution, as well as against all forms of exploitation of manpower and of children, sexual at wars or for begging purposes.
It is also appropriate to cite here the right to physical integrity. In fact, it is forbidden to subject a person to torture, just as it is not permitted to throw someone in jail without a legal foundation, with the necessity to guarantee all the conditions for a fair trial. One could equally cite the right to juridical personality and the right to a private life. This right is very much tied in with the inviolability of home and of correspondence, not to mention one of the most important civil rights; namely, the right to move around and the freedom of choosing one's area of residence, besides the freedom of thought and creed, opinion and expression, as well as the search for information. One could also adduce here the right to association, labour union rights, the right to marriage and the constitution of a family, coupled with the rights of the child, notably the right to protection, the right to a patronymic as well as the right to nationality.
These civil rights do not constitute gifts, neither are they offerings, to the inhabitants of the Sahara, but are commitments that are incumbent upon the Moroccan State: this self-same State is in charge of respecting them then. In contrast, Sahrawis may enjoy these rights, but within the framework of legality. The responsibility of the Sahrawi person resides in the strengthening of his civil conduct, thanks to these rights. In parallel to these civil rights, what are the political rights provided for by the Moroccan Project of Autonomy?
The Moroccan Project of Autonomy guarantees several political rights at the head of which is the right to self-determination, through participation in a popular consultation on the autonomy project once it is accepted by the parties to the negotiations. Equally important is the fact that the Sahrawi population has the full right to make use of the resources and wealth of the region, pursuant to point 13 of the Moroccan Autonomy Project. This self-same population also has the right to take part in the management of the affairs of the city: participation in elections, in consultations and so forth.
The whole set of these rights tends to converge towards one principal aim: to cultivate constructive citizenship. In other terms, their main objective is to break loose from the dramatic past of the Tindouf camps: to put an end to sequestration and to turn the forced exiles, who are robbed out of all their rights, into active as well as positive citizens, assuming as they will the responsibility for managing the bodies of the Sahara Region.
Having said that, what about economic, social and cultural rights?
II. Economic, social and cultural rights
Economic, social and cultural rights are all guaranteed by the Moroccan Autonomy Project. The State takes it upon itself to secure these rights without discrimination on the basis of gender, race, language or religion, political opinion or any other such element as social background, property or birth. Within this egalitarian framework, the population of the Sahrawi region has the right to fully and freely enjoy those rights. What this implies is the adoption of a policy that seeks to secure an equitable distribution of resources, so that no region, nor tribe or social category is left out therefrom; the Moroccan Project of Autonomy would lose its substance if it did not strive towards eradicating poverty through an equitable distribution of the resources of the region to the benefit of its inhabitants. It is also appropriate to encourage free initiative, which is a condition for promoting socio-economic development.
The State takes great care to secure several social rights to the inhabitants of the autonomous region. Thus is it for the right to work, the right to vocational training, the right to a fair salary, the right to rest, etc. Of course, the labour union rights will be guaranteed, too, besides the right to property and the right to private initiative.
The citizen of the provinces of the South is then invited to positively take part in the move towards the socio-economic development of their region, which is a conditio sine qua non for an utmost profit at the level of well-being.
Other social rights are guaranteed by the Moroccan State, in view of the Moroccan Project of Autonomy: the right to social protection, the right to maternity leave, the right to marriage, etc. In sum, all the social rights protected by the Moroccan texts, at the head of which is the Constitution, are guaranteed or expanded to the autonomous region. This readily transpires from reading point 25 of the Moroccan Project of Autonomy, which stipulates that « The Region's populations shall enjoy all the guarantees afforded by the Moroccan Constitution in the area of human rights as they are universally recognized ».
In the same vein, point 26 of the Moroccan Autonomy Project stipulates that « an Economic and Social Council shall be set up in the Sahara autonomous Region. It shall comprise representatives from economic, social, professional and community groups, as well as highly qualified figures ».
One could also pin down other social and economic rights that are guaranteed by the Moroccan Autonomy Project. Essentially, one could advance that, as long as Morocco complies with the international texts relative to Human rights, of which the Covenant on Economic, Social and Cultural Rights of 1966 is but one, all the rights provided for by this instrument will be expanded, mutatis mutandis, to the Sahara region the right to a decent income, the right to access basic treatment, the right to food, etc.
The Moroccan State should, in addition, strive towards limiting the rate of infant mortality, and to set in motion a genuine policy of environmental protection.
The objective behind such rights is to favour the burgeoning, so to speak, of a middle-class. In fact, what worth do social rights have if they leave no direct impact on reality, and on the lived experience of citizens? The greatest challenge is then to integrate the population in the process of socioeconomic development and, as has already been said, to struggle against poverty and exclusion. Thus will Morocco enormously gain in terms of economies, for the settlement of the conflict will lower the military costs to the advantage of national socioeconomic development.
Side by side with the afore-mentioned social and economic rights, it is appropriate to mention cultural rights. Hence, the right to education and the right to culture are guaranteed by the Moroccan Autonomy Project, based, as already said, on national as well as international texts. Cost-free education is thus guaranteed. It is also envisaged that the State build universities within the autonomous region, and will also erect the infrastructures likely to favour the cultural takeoff of the region. Such an approach obviously includes the creation of cultural infrastructures such as theatres and cinemas, all of which aim at encouraging and livening up cultural life.
Also, a policy such as this one is such as to establish equilibrium between local identity and the sense of belonging to the nation. In fact, encouraging hassani culture will undoubtedly enrich the national culture. Local culture ought not to lead to some sort of a withdrawal or a narrow-minded chauvinism, a fact which necessitates the organisation, in the other regions of the Kingdom, of exhibits dedicated to the hassani patrimony, in addition to the need for Moroccan intellectuals to participate in the debate on the promotion of Sahrawi culture, in general, and hassani patrimony, in particular.
III. The guarantees securing the dignity and liberty of sahrawis
There exist two manners of envisaging Human rights within the provinces of the South, each of which aims at preserving the dignity of Sahrawis, as well as their rights and liberties.
The first one is linked to certain fundaments of the rule of law; namely, the institutions. This suggests that there is a pointed interest in modalities, procedures, and authorities rather than in the defence of the rights of individuals.
The second one is relative to the standardisation as well as the support to be lent to the efforts deployed by the organisations of civil society, be they local or national.
Among the institutions that strive towards anchoring the defence of Human rights, there figure the judiciary organ, the Parliament as well as the Human Rights Advisory Council for (CCDH).
As far as justice is concerned, the need is for taking justice under all its guises: administrative, penal, social, constitutional, etc. This constitutes a reliable guarantee for the defence of the rights of the inhabitants of the Autonomous Region of the Sahara. It so appears that the culture of referring to justice has not in fact been generalised therein. It would then be appropriate to cultivate it. Indeed, the State could within this perspective encourage the free recourse to the bar before the administrative courts of law, a fact which is not yet provided for in the law currently legislating these courts. One knows indeed that the fees connected with the services rendered by lawyers constitute one of the obstacles standing in the way of generalising access to administrative tribunals, notably on the part of low-income categories.
As far the parliamentary institution is concerned, one knows that the legislative body constitutes one of the most important mechanisms for the defence of Human rights. It assumes the function of control through the questions raised by the deputies or counsellors, as well as through the constitution of boards of inquiry. It also contributes to the legislative function through the proposal of laws, the discussion of and vote on any initiative, be it a proposal or a draft of law. In this way, the parliament reinforces the juridical arsenal of the defence of Human rights and basic liberties. However, one knows that this role depends upon the nature of parliamentary elites, which implies that only the best elected members be chosen to reinforce parliamentary action.
As to the role of the Human Rights Advisory Council of, the fact is that it remains important at the level of the protection of Human rights, be it through the treatment of these violations openly and publicly before the victims of the same violations. These victims present their complaints to this particular body, which takes in charge examining them, and earmarking the corresponding indemnities, after formulating the necessary recommendations to whom they may concern. Within this perspective, it is appropriate to mention the quite positive experience led by the Equity and Reconciliation Commission, which was created upon a Royal initiative in 2004. It was thus that the concept of transitional justice was established in Morocco through this body.
The role of NGO's on matters of the defence of Human rights remains to be of a primordial role. In order that it fully produce its effects, this role has to be combined with the one that the State accomplishes, be it at a local or national level. It is also appropriate to multiply sensitization campaigns around the culture of Human rights. In all cases, the effects of synergy are highly desirable for a maximum impact to be achieved.
Also, all the NGO's who are known to be active in the domain of Human rights are invited to combine their efforts with a view to organising conjoined actions that are such as to contribute to the active defence of Human rights. It is appropriate to take Human rights in their global meaning, the reason being not to exclude such associations as those that struggle against corruption; or those that defend public moneys against dilapidation, for instance.
Hence, it is highly recommended that these associations gather together every year or so within the future autonomous Sahara region in order to communicate about and, by the same gesture, share their experiences. And why not formulate a global strategy that they commit themselves to carry out, a strategy that promotes the culture of peace, of dialogue and respect for the other?
Rights are not gifts offered by the State, nor are they privileges to be handed out. They are obtained within the sole peaceful framework of institutionalised militancy. Certainly, it so often happens that laws remain confined to the theoretical value of texts. However, the coordination of the efforts of civil society, both at the national and the local planes, would certainly contribute to making these laws more effective. The ratio legis of the existence of the State consists in watching over the scrupulous respect for the application of laws, with a view to protecting rights and liberties within the framework of the respect that individuals have to have for their commitments as well as their responsibilities, the objective being to achieve the justice that leads to equality, a fact which rationalises the power of the State, and accomplishes equilibrium between the governors and the governed.
Ouafae El Filali
Professor at the faculty of law, Souissi - Rabat