A Legal Reflection on: The Swedish wrongful intention to recognize the Virtual SADR

By African Bulletin on October 18, 2015

By Matsumoto Shoji

Président de l’Institut de Sapporo pour la solidarité Internationale

Professeur de Droit International et droit comparé , University of Sapporo Gakuin

We were not only surprised, but also disappointed on how a western country is involved in an inaccurate way for the peace building.

In my sense, the Swedish move towards potential recognition of the self-proclaimed Sahrawi republic (SADR) as an independent state is rejected from the standpoint of International Law, since any recognition of SADR is legally a wrongful act. And from a political point of view, it remains against the constructive role of UNSC in encouraging dialogue between parties, and countering the secretary general appeal for the creation of a positive environment among Un state members, to increase confidence building between the Two parties Morocco and Polisario Front.

In fact, any move to recognize the virtual SADR, is not only inaccurate, but wrongful.

I. Legally:

From a legal pint of view to recognize such seceding entities as SADR as a State is illegal in international law and the act of the recognition has no legal effect and wrongful. It may infringe the sovereignty of the existing State from which independence is unilaterally declared.

There three explanations to this ultimate assessment:

1. First, an act to recognize secession from a recognized State may contradict the past act of recognition of the State. To recognize SADR, for example, contradicts the past act of recognition of Morocco, because the territorial area that has been declared to be independent by SADR had been restituted to Morocco by the Madrid Accord in 1975, in which Spain expressed its intention to decolonize Western Sahara and transfer the territorial sovereignty to the interim administration, i.e., to Morocco and Mauritania, though Mauritania has withdrawn by the Mauritano-Saharaoui Agreement in 1979. The “respect of borders existing on achievement of independence” is prescribed in article 4 (b) of the Constitutive Act of the African Union (AU Act).

2. Second, in customary international law, the recognition may amount to an intervention in the domestic matters of the existing State from which independence is declared, for the declaration to secede is a domestic matter, having no international legal effect. What has the legal effect is the act of recognition by other States. As the acts of recognition have been widely believed to be unilateral, such expressions of will as declarations and consents by the seceding entities are not essential to become legally effective. That is why, What is illegal is not the declaration itself – since we have some private organizations in the world who claim being states, i.e.: Republic Eastern Turkistan, ISIL, RASD- , but the recognitions by other States and membership in international organization.

3. Third, it would affirm the violation of the territorial integrity of the existing State from which independence is declared. But the principle of territorial integrity is an important part of the international legal order, enshrined in article 2 (4) of the UN Charter, articles 2-3 of the OAU Charter, article 3 of the AU Act, and General Assembly Resolution 2625 which reflects customary international law, as held in Nicaragua Case (ICJ Rep 1986, paras. 191-193). Affirmation by other States of the violation is equivalent to declaration to violate the territorial integrity, amounting to an internationally wrongful act against the existing State from which independence is declared.

But , how is the right of self-determination protected in the context of secession?

In article 29 of the AU Act, the candidate for the Member State must be an “African State”. Although the acts recognizing SADR by States are invalid or wrongful, it seems to be indicated that the qualification of the SADR as an “African State” for the membership of the AU has not been pro forma deliberated. Can the AU that is created by African States create a new African State? If the international organization were no less sovereign than the Member States, it could create a new State. But in fact, only States can.

On analysis, without the act of recognition by Morocco, SADR can never be lawfully recognized as a State by other States. And it is not until Morocco recognizes SADR that it can be lawfully admitted as a Member State of the AU as well as OAU. But Morocco has not recognized SADR as a State. Eventually, the AU itself may violate the territorial integrity of Morocco. The OAU Charter provided the territorial integrity of each State as a purpose in article 2 (1), and as a principle in article 3 (3), which is inherited in article 3 (b) of the AU Act. What should the African Union do?

As the government of SADR is located in the midst of the Algerian territory, Algeria may most effectively direct and control SADR by exercising the territorial sovereignty. To the situation, article 17 of the Responsibility on States may well be applied. It provides that “a State which directs and controls another State in the commission of an internationally wrongful act by the latter is internationally responsible for the act”. Although Algeria recognizes SADR as a State and supports it, any part of the Algerian territorial sovereignty has not been transferred to SADR, keeping it under the direction and control of Algeria. Thus in the international law of State responsibility, SADR is as the same as Algeria. In fact, it is considered as a part of Algeria.

In conclusion, an act to recognize a seceding entity as a State is not only invalid, but an internationally wrongful act against the existing State from which independence is declared. Thus, the acts of recognizing SADR as a State by other States may be wrongful against Morocco. Then, how about the international responsibility of such organizations as the OAU and AU for the admittance of SADR as the Member State?

Admitting SADR to become a Member State of the OAU or AU is also an internationally wrongful act against Morocco, according to the Draft Articles on Responsibility of International Organizations adopted by the ILC on first reading in 2009. Because it violates the principle of territorial integrity prescribed in the OAU Charter, AU Act and customary international law. International personality of international organizations that is required to incur international responsibility has already been affirmed by the ICJ in the Reparations for Injuries Suffered in the Service of the UN Opinion (ICJ Rep 1949, pp.13-5). How can the responsibility for the international wrongful act of the AU be discharged?

As the ICJ noted in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), the reparation for injury “must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (ICJ Rep 2002, para.76), citing the Factory at Chorzów Case (PCIJ, Ser A, No 17, 1928, p.47). Article 34 on Responsibility of International Organizations provides that “an international organization responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed”, reproducing article 35 on State responsibility, the only difference being that the term “State” is replaced by “international organization”.

Then, what can be done for a non-material injury? The utility of declaratory relief for a non-material injury to a State was affirmed in the Corfu Channel Case (ICJ Rep 1949, p.35). According to the Commentary on article 37 on State Responsibility, this has been followed in many subsequent cases, e.g., the Rainbow Warrior arbitration (RIAA 1990 xx, pp.272-273). And in the ILC Commentary on article 36 on Responsibility of International Organizations, the article may be transposed, replacing “State” with “international organization”.

One of the ways to discharge the responsibility of the AU is to reconsider the relevance between SADR and Algeria with reference to article 17 on State Responsibility, which provides for the direction and control exercised over the commission of an internationally wrongful act. Definitely, SADR may be declared as the same as Algeria in the AU to discharge its responsibility for the wrongful act of violating the territorial integrity of Morocco.

II. Politically

From a political point of view, Swedish political circle behind this wrongful move, can be judged as a hostile behavior not only to the bilateral ties between the kingdom of Morocco and the Kingdom of Sweden, but it affects the engagement of Sweden in supporting the UN in encouraging the negotiations between parties, and remains against the constructive role of UNSC and countering the secretary general appeal for the creation of a positive environment among Un state members, to increase confidence building between the Two parties Morocco and Polisario Front.

III. Ethically:

From an ethical point of view, The Swedish behavior is in fact not affecting only the political process of the Sahara issue, but it is distorting the core of democratic values. Ever since any recognition of SADR, is a malicious attempt to exterminate of the right of the Saharawi population to designate its own future, and consequently, the recognition of the virtual Republic is an inappropriate move that may expose Swedish government as hijacker of the right of the right of self-determination.

Swedish public opinion should be aware also, that the entitlement of Polisario as the representative of Sahraoui people is not suitably true. Because today, we are facing at least five actors who share such connotation: (1) The Polisario Front, (2) the Sahraoui NGOS in the territory, (3) the Sahraoui Council, (4) Khat As_Shahid – The Political mainstream dissident from Polisario Front-,(5) and then Moroccan State who claims its sovereignty over the territory.

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