WHY Morocco withdrew confidence from Ross?

The Western Sahara Conflict: Back to the Source ?
By: 

Shoji Matsumoto

Professor of Comparative International Law

International Legal Expert in Conflict Resolution

University of Sapporo Gakuin. Japan

 

Three inaccuracies in the Report of the Secretary-General on the situation concerning Western Sahara 2012 (2012 Report) should be pointed out.[1] First, in publicizing human rights information, impartiality is not ensured. Second, human rights issues are ultra vires addressed in the context of the MINURSO activities. Third, the implementation of the mission of the Personal Envoy of the Secretary-General for Western Sahara, Christopher Ross, is biased against one of the parties, i.e. Morocco. Does the Western Sahara conflict involve human rights issues? Such issues would be better dealt with in the competent human rights organs. Wither the Western Sahara conflict?

1. Whoever Invokes Humanity Wants to Cheat

In general, almost all claims to rights can be abused or misused, while in particular, claims to political and civil rights are more susceptible to political use, or misuse, than other claims in the international society.[2] As its reason it is submitted that human rights, being originally to be applied only in the relations between State organs and individuals, are not derived from “socially constituted legal subjects.”[3]

Human rights issues are to be deliberated, in accordance with intensive and regular procedures for investigation and examination, on the condition that the local administrative and juridical remedies available have been exhausted, in the human rights courts or commissions. One of the reasons why such strict procedures are required of human rights issues is explained to the point by Carl Schmitt that “whoever invokes humanity wants to cheat.”[4] Indeed, its extra-judicial invocation would lead to violence.

Thus, the UN Secretary-General, Boutros Boutros-Ghali, has once remarked as regards information that “it has to be recognized that, in the inevitable fog and confusion of the near-war conditions in which peace-keepers often find themselves, as for example in Angola, Cambodia, Somalis and former Yugoslavia, time is required to verify the accuracy of initial reports. Understandably chiefs of mission have to be more restrained than the media in broadcasting facts that have not been fully substantiated.”[5] Although the Western Sahara conflict is different from those examples, the implication of the remark may be relevant to the inclusion of hearsay or unverified human rights information in the 2012 Report.

 

2. Honesty Should Pay

On human rights issues, the 2012 Report refers to Morocco more frequently than to the Polisario. It may leave a misleading impression of the human rights situation in the Tindouf camps, located east of the berm. According to the Secretary-General, however, the area of operation was not immune from the repercussions of instability elsewhere. One Italian and two Spanish humanitarian workers were kidnapped from Rabouni, near Tindouf, on 23 October. The 2012 Report explains that the “Movement for Unity and Jihad in West Africa,” said to be an Al-Qaida splinter group in the Islamic Maghreb, has claimed responsibility (Ibid., para. 51). The abduction incident was the first of its kind for the Mission. In the aftermath of the incident and amid a reported increase in the regional operations of the Movement for Unity and Jihad in West Africa, and in criminal activities and weapons proliferation in the Sahel after the October 2011 fall of the Libyan regime, MINURSO reviewed security conditions for all team sites east of the berm, the Mission took additional risk mitigation measures, including 24-hour static security guards. It also improved team site fencing and lighting, siren and alarm installation, surveillance cameras and monitors, and satellite vehicle tracking systems (Ibid., para. 53).

More information may be collected from such an open society as Morocco than from such a closed society as the Tindouf camps. But, honesty should pay. If certain categories of human rights information on the Tindouf camps could not be collected, the corresponding information on Morocco should not be publicized without consent of Morocco. Otherwise, honesty would not pay. What is, then, the proper status of human rights issues in the Western Sahara conflict?

 

3. MINURSO under the Law

Any conflict has multitudes of potential issues; legal, political, economic, ethical and so on. Even a single legal conflict has too many potential issues to be solved. Then, in the joiner of issue, itwould be mutually accepted by the conflicting parties. Issues other than the accepted issue would be set aside as nonexistent for the purpose of resolving the conflict.

An accepted issue with respect to the Western Sahara conflict is the decolonization of the territory of Western Sahara or the right of the residents to self-determination. To identify the residents as Sahrawi may have trouble. Such “legislated identity” as Hutu and Tutsi after 1933 census by Belgium may lead to genocide. Before the census, there were no ethnic groups in Rwanda. An individual Hutu could socially rise to the status of Tutsi (kwihutura) and vice versa (gucupira). The Sahrawi, meaning “from the desert,” exemplifies another “legislated identity,” enforced for the purpose of implementing a referendum.[6]

Morocco does not unilaterally accept human rights issues without actual guarantee to monitor the human rights situation in the Tindouf camps, while the group of private persons backed by oil-rich Algeria, Polisario, allegedly “expects broader monitoring of the welfare of the population” (Ibid., para. 92). Why? The reason may well be that Polisario’s information is guarded by Algeria’s territorial sovereignty. If only one side, i.e. the Polisario, is in the wrong, moreover, the conflict would not continue any longer. The additional issues would enable to protract it and benefit the cronies not only in the Polisario and Algeria but also in the UN. Nevertheless, human rights issues are not included in the mandate of the MINURSO.

Notwithstanding, the 2012 Report makes mention of human rights issues in “IV Activities on the ground.” The mention may be inconsistent with the objectives set forth by the Security Council in successive resolutions (Ibid., para. 92). For an additional mandate of the MINURSO, the parties’ approval is needed in advance. Or, the Mission’s acts thus committed would amount to intervention in the domestic jurisdiction under article 2(7) of the Charter of the United Nations (UN Charter). The principal purpose of establishing MINURSO was to organize and supervise a referendum on Western Sahara’s self-determination and as a supportive function, to monitor the ceasefire between the parties and maintain the military status quo (2012 Report, para. 91), but not to collect human rights information.

As a matter of fact, Ban Ki-moon affirms human rights issues outreach the Mission’s existing mandate when he laments: “Morocco favours a narrower military peacekeeping operation, while Frente Polisario expects broader monitoring of the welfare of the population and inclusion of a human rights mechanism as in other peacekeeping missions. Such divergent interpretations have led to an approach to the Mission which has, over time, eroded the Mission’s authority, weakened MINURSO functions …” (Ibid., para. 92). Furthermore, he reiterates in “VIII. Observations and recommendations” that “At present, the main tasks of MINURSO comprise monitoring of the ceasefire agreement between the parties; reporting on the military activities of both sides and on developments in and affecting the Territory; demining activities; and the provision of logistic support to the UNHCR confidence-building measures programme” (Ibid., para. 109). Thus, the Secretary-General reconfirms human rights issues are not accepted by the parties, and not included in the Mission’s mandate.

Let’s look to first inaccurate behavior within the Ross report in 2011.

 

4. Dragon’s Teeth: Christopher Ross

Because of the Moroccan decision to withdraw confidence in Ross, he would be no longer able to implement his mandate. If the mandate is not implemented, any budget should not be spent. The payment subsequent to May 2012 would become unjust. Then, the UN should claim against Christopher Ross to restitute the unjust enrichment, though it may be negligible in comparison with the following two issues.

First, the loss of Moroccan confidence in Ross entails that his continuance as a Personal Envoy is equivalent to discontinuance of efforts on behalf of “a just, lasting and mutually acceptable solution.” Then, it would lead to a different solution from the existing political solution through negotiations. The different solution may be a solution based on the existing international law, not on lex ferenda, or future law, of which concept may be made by a self alone, in disregard of the other. A reason why Ross has lost Moroccan confidence may be his failure of taking such lex lata seriously as the Madrid Accord which was concluded to decolonize the territory of Western Sahara by Spain, Morocco and Mauritania in 1975, and the Convention concerning the State Frontier Line established between Mauritania and Morocco in 1976. Both are among dispositive treaties, which are valid erga omnes, i.e. opposable to and valid against all other legal persons, including Algeria, irrespective of consent on the part of those thus affected.

Second, any negotiation without the principal party, Algeria, would not succeed. As the Polisario is under Algeria’s territorial sovereignty, it is under Algeria’s control. Article 8 of the Draft Articles on Responsibility of States for Internationally wrongful Acts, adopted by the International Law Commission, provides that the conduct of a group of persons shall be considered an act of a State if the group is in fact acting under the control of that State in carrying out the conduct.[7] The International Court of Justice (ICJ) holds that “The fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility”.[8] Therefore, Algeria assumes responsibility for any event occurred in the Tindouf camps, Algeria. Should an agreement be successfully reached, the negotiating parties should be independent in decision-making and its implementation, i.e. Morocco and Algeria. The conception is just as valid for the reports of Secretary-General, like the 2012 Report.

 

5. Autonomy Project

Sovereignty over the territory is restituted to Morocco by the Madrid Accord in November 1975, a month after the Western Sahara Opinion, which has ultra vires given 3 answers to 2 questions.[9] Though the territory is put in the list of non-self-governing territories prescribed in article 73 of the UN Charter, the article does not refer to independence, but only to “a full measure of self-government,” different from trust territories under article 76 (b) referring to “self-government or independence.”

A non-self-governing territory may be either colonial or non-colonial, under paragraphs 5 and 6 of the UN General Assembly Resolution 1514 (1960) and Resolution 2625 (1970). A colonial non-self-governing territory is “separate and distinct” from the territory of the administering State. Thus, its independence from the State does not infringe its territorial integrity. In contrast, to a non-colonial non-self-governing territory without its administering State like the territory of Western Sahara, paragraph 6 on the principle of respect for the territorial integrity of a State is applied. In a non-colonial situation, the right to self-determination is equivalent to the right to autonomy, and that it is valid erga omnes. Thus, not only Morocco, but such non-parties of the Madrid Accord as the Polisario and Algeria are under obligation to respect the right. That’s why the Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region (Autonomy Project) is proposed.[10]

A remaining problem is to recover the part of the territory, now wrongfully occupied by the Polisario, for implementing the right to autonomy under Moroccan sovereignty that is restituted from Spain.

 

6. Conclusion ? Return to the Source

Careless or biased remarks on human rights issues would make the conflict worse and obscure where to go. When the direction is lost to sight, we should return to the source. The source of the Western Sahara conflict is the decolonization of the territory of Western Sahara.

The legal status of the territory illustrates the concept of “different territories for different purposes,”[11] implicated in the East Timor Case.[12] Its example is found in the UN Convention on the Law of the Sea, i.e. territorial sea, contiguous zone, exclusive economic zone and continental shelf.

For the purpose of sovereignty over the territory of Western Sahara, it is the territory of Morocco. But the sovereignty is impinged by the Polisario. Thus, negotiation has been held between Morocco and the Polisario, though Algeria controls the Polisario. For the purpose of State responsibility, then, the Tindouf camps are the territory of Algeria. Meantime, for the purpose of finding “a just, lasting, and mutually acceptable political solution,” the territory of Western Sahara is tentatively presumed as a non-self-governing territory, which would be however a ‘self-governing territory’ under the Autonomy Project. The restricted purpose of the non-self-governing territory may explain why the responsibility of its administration is not assumed by any member State. The residents in a non-self-governing territory are entitled to attain self-government, which is not always ensured by independence, as appealed by the Arab spring.

Why, then, self-government, not human rights? Even the lesson of Holocaust is not the need to give more attention to human rights, separating the rights bearer from the agents enacting the rights, but the need to ensure the citizen’s rights to participate in government. Without such rights, the citizen’s status as active decision-making political subjects would be reduced to mere objects of charity or benevolence, like the actual status of the residents in the Tindouf camps.[13]

In conclusion, the Western Sahara conflict should return to the source, or the Madrid Accord.

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[1] UN Doc S/2012/197, 2012.

[2] D. Chandler, “Ideological (Mis)Use of Human Rights,” in M.Goodhart (ed.), Human Rights: Politics and Practice, Oxford University Press, 2009, p. 114.

[3] N. Lewis, “Human Rights, Law and Democracy in an Unfree World,” in T. Evans (ed.), Human Rights Fifty Years On, Manchester University Press, 1998, p. 85.

[4] C. Schmitt, The Concept of the Political (1927), The University of Chicago Press, 2007, p. 28.

[5] UN Doc A/50/60-S/1995/1, 1995, para. 39.

[6] J. Waterbury, “Avoiding the Iron Cage of Legislated Identity,” in W. Danspeckgruber & A. Watts (eds.), Self-Determination and Self-Administration: A Sourcebook, Lynne Rienner, 1997, pp. 375-87.

[7] UN Doc A/CN.4/SER.A/2001, Add. 1, (Part One), 2001.

[8] Corfu Channel Case (Great Gritain v. Albania) (Merits), ICJ Report 1969, p. 18.

[9] The ICJ has taken the liberty of answering itself to a third homemade question on the right of the population of Western Sahara to self-determination, which was not asked by the General Assembly in its resolution (UN GA Res 3239) in 1974. ICL Report 1975, paras. 161-62.

[10] UN Doc S/2007/206, 2007.

[11] Cf. “Different boundaries for different purposes,” in G.Gottlieb, Nation Against State, Council on Foreign Relations Press, 1993, pp. 1-5, 44-47, 75.

[12] ICJ Report 1995, paras. 31-32.

[13] H. Arendt, The Origin of Totalitarianism, Manier Books, 1973, pp. 296, 30. .D. Chandler, loc cit. supra note 2, pp. 114-15.

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